For those in fear of violating Title 17 of the United States Code the next time they attend a friend’s birthday party, you are now in luck. This past Tuesday, United States District Judge George H. King ruled that Warner Music Group’s (“Warner/Chappell”) claim of copyright in the song “Happy Birthday” was legally ineffective, therefore freeing the popular song from the clutches of copyright protection and placing it within the public domain. Now all those wishing to sing the merry tune may do so as freely and joyously as they want, without fear of having to pay a royalty for doing such. Judge King’s holding stems from the reasoning that, because Clayton F. Summy – the alleged owner of the copyright in the song prior to being bought out by Warner Music Group in 1998 – failed to actually acquire the rights to the “Happy Birthday” lyrics, Warner/Chappell, as successors-in-interest, did not own a valid copyright in the lyrics to the song.
Copyright protection affords the owner of a copyright the exclusive right to do and/or authorize any of the following:
- Reproduce copies of the copyrighted work;
- Prepare derivative works based upon the copyright work (i.e. converting a novel into movie);
- Sell the copyrighted work to the public, or otherwise transfer ownership by way of rental, lease, or lending (i.e. through a licensing agreement);
- Perform the copyrighted work in a public setting (i.e. at a concert);
- Display the copyrighted work in a public setting (i.e. in restaurants or museums); and
- Perform the copyrighted work in a public setting by means of a digital audio transmission (i.e. through a jukebox)
While affirmative defenses that allow individuals to use an owner’s copyrighted work without permission do exist, based upon this list of exclusive rights, it appears that Warner/Chappell relied on the exclusive ability granted to copyright owners to perform and/or authorize the performance of “Happy Birthday” as a means to profit and capitalize on the popularity of the song, as the lawsuit claimed that Warner/Chappell earned more than $2 million a year on fees related to licensing of the song. However, after this ruling, such profit margins will no longer be the case.
Judge King’s ruling is not only important due to the fact that it places “Happy Birthday” in the public domain, thus allowing those wishing to incorporate it at their next birthday party to do so freely and without fear of liability; it is also important because it highlights the importance of carrying out due diligence and ensuring that the party claiming to have an exclusive right in and to a form of intellectual property (i.e. trademarks, copyright, and patents) actually possess such rights. Prior to the initiation of this case by Good Morning To You Productions – the plaintiffs who brought the lawsuit against Warner/Chappell – major Hollywood movie studios and filmmakers who wished to use the song in a film simply paid Warner/Chappell for the rights to do so as a way to avoid litigation. As always, those wishing to utilize other’s intellectual property should make sure they are paying for what they actually receive, and should seek assurances that the other party actually has the right and ability to provide what is expected.
 See 17 U.S.C. § 106