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Plaintiffs: We All Own ‘Happy Birthday’

Litigation surrounding the most recognizable song in the world is coming to a head as a dispute between the Warner Music Group and a collection of plaintiffs nears judgment.

At countless celebrations, family and friends gather to offer well wishes to loved ones in the coming year--and many times they do that by singing the notable jingle “Happy Birthday.” However, those who perform the song “publically” must dish out royalties to Warner Music, the entity that enforces the copyright on the song and purports to own it.

According to Cornell University Law School Legal Information Institute, 17 U.S. Code § 106 - the owner of copyright under the law has “exclusive rights … in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly,” among other things.

Mark C. Rifkin of Wolf Haldenstein Adler Freeman & Herz LLP is lead council for the plaintiffs who allege the song “Happy Birthday” is, in fact, in the public domain. Rifkin explained the case: “We commenced this lawsuit more than two years ago after conducting a detailed review of the factual record for the song, from which we determined that the copyright in question is limited to a specific piano arrangement composed in 1935 by Preston Ware Orem, an employ of the Clayton F. Summy Co.,” he said. “The defendants have admitted that Mr. Orem did not write the Happy Birthday lyrics. Therefore, the copyright for the work done by Summy Co.’s employee did not, and could not, cover the song itself.”

He said last month, a year after the discovery phase of the case had come to a close, the defendants produced a “poor reproduction” of a 1927 songbook that included “Happy Birthday” with permission from Summy Co., but no notice of copyright.

“We thereafter obtained several other earlier editions of the 1927 publication, including a fourth edition of the song book, published in 1922, which also contained the song with Summy Co.’s permission but without a copyright notice. Under the law at the time, such a publication without a copyright notice extinguished any copyright that may have existed prior to 1922.”

Now, the case is coming to a point. Rifkin said Monday, Aug. 17, is the deadline for Warner to file a reply brief on a motion to supplement the record with new materials obtained from the British Library. Rifkin said, though, he believes those documents are “irrelevant” considering the 1922 publication of the song sans a copyright notice.

“After the defendants file their brief, the court can rule on the cross-motions for summary judgment with or without further hearings. There is no date set for another hearing, and the court can rule at any time,” he said. With respect to broader implications of the case, he added that the plaintiffs hope this case “will discourage the unlawful assertion of copyright claims over work that is in the public domain. Such misuse of the copyright laws can have a chilling effect on the creative work of others, which is not consistent with the purpose of the copyright act.”

Entertainment lawyer Eric Greenspan, of Myman Greenspan Fineman Fox Rosenberg & Light, said the “fact-specific” nature of the case will limit its legal impact on the music industry, though. As of press time, Warner music did not respond to an inquiry regarding the case.

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