Have you ever celebrated a birthday at one of those chain restaurants where the overly enthusiastic wait staff serenades you with something other than the traditional “Happy Birthday to You?” If so, you are not alone. Many of the large chains, not wanting to pay copyright public performance royalties, have told their employees to sing some other song to birthday celebrants. If a recently filed lawsuit in Federal court in New York is decided in favor of the plaintiff in that case, the traditional song may replace all of those other “substitutes.”
The issue in the case of Good Morning To You Productions Corp. v. Warner/Chappell Music, Inc., is quite simple: Is “Happy Birthday To You” still protected by copyright?
According to the lawsuit, there is evidence dating back to 1893 that demonstrates that the song’s copyright expired around 1921. Apparently four previous copyrights to a similar-sounding song “Good Morning to All,” filed in 1893, 1896, 1899 and 1907, have expired or been forfeited. The lawsuit further alleges that the copyright that Warner/Chappell has been relying on protects only a particular piano arrangement of the song that was first published in 1935. Under the copyright law, if something is in the public domain but a new copyrightable version of it is created, only the elements added to the original public domain version are then protected by the new copyright. For example, the iconic Whitney Houston version of the Star Spangled Banner that was performed at the Super Bowl is protected by copyright, but only the orchestration and arrangement—not the underlying song which is in the public domain.
The plaintiff in the case is a filmmaker who is doing a film about the song. It claims that Warner/Chappell (who purchased the copyrights around 1985) has been illegally charging people for the right to publicly perform the song, as well as the right to include the song in films, etc. In the lawsuit, the filmmakers argue that the song should be “dedicated to public use and in the public domain.” The company will seek monetary damages and restitution of more than $5 million in licensing fees collected by Warner/Chappell Music Inc. from everyone who has paid the company’s licensing fees. Should the court rule that the song is now in the public domain, anyone could use it royalty free.
This will be a very interesting case to monitor. Don’t be surprised in a year or so if your birthday celebration at Applebee’s includes a spirited version of Happy Birthday to You.