In a rare victory for the commons, “Happy Birthday to You” enters the public domain today, finally freed from a copyright long claimed by Warner/Chappell Music. Though Judge George H. King of the federal district court in Los Angeles initially ruled last September that the copyright was not valid, the company battled on, perhaps because with no rival as the most widely recognized and frequently sung song in the English language, the tune has steadily generated some $2 million a year for the publishing company. Settlement was finally reached earlier this year, and Judge King made it official today.
Prying the song from Warner/Chappell’s clutches required a bi-coastal, multi-year legal campaign waged by Rupa Marya, physician, UC San Francisco professor, and singer/songwriting leader of Rupa & The April Fishes, and New York documentary filmmaker Jennifer Nelson. Represented by attorneys Daniel Schacht and Andrew MacKay, Berkeley Law graduates and partners in the Oakland firm of Donahue Fitzgerald, Marya took on the exposed position of named plaintiff in a class action suit concluded today with Warner/Chappell agreeing to pay damages to people and companies who licensed “Happy Birthday” in recent years.
“They claimed they held the copyright until 2030,” Schacht says. “They not only gave up that claim, they agreed to pay back $14 million in royalties.”
While the copyright was being enforced, the publishing arm of Warner Music Group charged for every commercial use of the song. You didn’t have to pay to sing it to Great-Aunt Ada maybe, but corny restaurants could be charged for embarrassing you with it on your natal day, and singing it to the president during a televised event could cost you.
Written by sisters Patty Smith Hill and Mildred J. Hill in 1893, “Happy Birthday” entered the Warner/Chappell catalog in 1988 when it acquired the company that owned a copyright filed in 1935. The song’s status has long attracted attention, even earning a citation in Supreme Court Justice Stephen Breyer’s dissent to a 2003 decision upholding the Sonny Bono Copyright Term Extension Act. And George Washington University Law Professor Robert Brauneis, co-director of the school’s Intellectual Property Program, wrote a widely read and deeply researched paper, “Copyright and the World’s Most Popular Song,” that makes a compelling case against the legitimacy of the “Happy Birthday” copyright. So why did it take so long for someone to challenge Warner/Chappell’s claim?
“It simply didn’t make sense for someone to take the financial risk,” MacKay says.
A big-budget Hollywood film requesting a license for “Happy Birthday” might have to pay Warner/Chappell a six-figure fee. Challenging the copyright would entail a legal case delaying a film’s release for years. A small film production or a musician requesting a license would likely face a fee of several hundred dollars. If you challenge the copyright in court and lose, you’re on the hook for Warner/Chappell’s legal costs.
“The stakes are big if you lose,” says Schacht, who started looking into the “Happy Birthday” copyright out of curiosity several years before challenging it in court. He and MacKay had to get clearance from the firm to delve into the research.
“It’s been going on for decades,” he says. “If this is such a great idea, why hasn’t anyone done it? With no paying client up front we had to get special approval from the firm. You’re taking on Warner/Chappell, who have deep pockets and excellent representation. It had been a cash cow since 1988. If we’re going to be in this fight, we have to win.”
They got the ideal plaintiff when Rupa Marya wanted to release Live at the Independent, a recording of a concert she played on the eve of her birthday in 2013 that concluded with the audience serenading her at midnight with the fateful song. An activist who has fought against the patenting of genetically modified organisms, she balked at paying the $455 licensing fee for including “Happy Birthday” on the album. Already represented by Donahue Fitzgerald, a firm that’s built a deep roster of music clients since being hired by Grateful Dead Productions some two decades ago, Marya decided to challenge the copyright.
But days before MacKay and Schacht filed the suit, they got word that the New York City law firm of Wolf Haldenstein Adler Freeman & Herz had brought a class action against Warner/Chappell on behalf of documentary filmmaker Jennifer Nelson. After a moment of panic, they contacted the lead counsel, Mark Rifkin and Betsy Manifold, about working together.
“We said let’s join forces,” MacKay recalls. “They’re a big class action firm. They have that expertise, and we deal with music and copyright. It ended up being a very complicated case. Rupa carried her weight as a named or lead plaintiff. She was the only individual with exposure not limited by LLIC. It was really important to her that we be able to take something that a huge corporation claimed to own and get them to pay back royalties they’d collected.”
In many ways, the Bay Area legal team was ideally prepared to tackle the case. Donahue Fitzgerald represents a glittering roster of Northern California artists, including Journey, Santana, and the Doobie Brothers. Handling intellectual property issues predating the Copyright Act of 1976 means they have to be well versed in the Copyright Act of 1909. Schacht, who spent 10 years working as a bassist and producer before he enrolled in Boalt, focused on intellectual property issues in law school, taking a class in music law with Peter S. Menell (“That was the class I did best in,” he says).
He also spent one summer as a research assistant for Pamela Samuelson, Richard M. Sherman ’74 Distinguished Professor of Law and a Professor of Information Management, looking into the legislative history of Section 102B of the US copyright code, which says that “in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.”
“I spent a whole summer looking into everything that led up to this law, which was meant to codify old law,” says Schacht, who’s teaching a course on music law at Boalt in the fall. “I loved all that real detail oriented work and research. I took a lot of classes with Pam, and my final paper was about the copyrightability of facts.”
The success of the “Happy Birthday” case may just be the first salvo in reclaiming America’s musical patrimony. Last week The New York Times reported that Wolf Haldenstein Adler Freeman & Herz filed a suit arguing that Woody Guthrie’s “This Land Is Your Land” should be in the public domain, and they might follow with a similar claim for the civil rights anthem “We Shall Overcome.” Warner/Chappell declined to answer questions about the “Happy Birthday” case, releasing a terse statement reading “While we respectfully disagreed with the Court’s decision, we are pleased to have now resolved this matter.”
Rupa Marya, who continues to work as a physician and perform internationally, hopes that her fight helps returns some balance to copyright law so that it protects the intellectual creations of artists. “May this ruling,” she says, “embolden ordinary people to challenge corporations profiting from the abuse of the law and of the commons.” In celebration of the victory, Marya led a rousing rendition of “Happy Birthday” on the courthouse steps in downtown Los Angeles, marking the song’s liberation.
Posted on June 24, 2016 - 5:31pm