Happy Birthday to All: The Famous Song is Now Effectively in the Public DomainDecember 9, 2015

The world of copyrights and the Public Domain can be a complex and confusing place. Generally, any work created or first published in the U.S. prior to 1923 is in the Public Domain. However, to determine if a work that was created or first published in the U.S. after 1923 has passed into the Public Domain you must first determine a number of facts including the original date of publication, whether the work was renewed with the Copyright Office, and whether the work was published with a copyright notice, among other factors.

On December 9, 2015, the case involving the most recognized song in the English language was settled, less than three months after the United States District Court for the Central District of California found that Warner/Chappelle Music failed to prove it held a copyright to the lyrics of “Happy Birthday to You.‚¬

For decades, Warner/Chappelle Music has aggressively protected the copyright to the song, earning upwards of $2 million per year in royalties. The song has reportedly earned $50 million since its creation.

While the melody for the song has been attributed to two sisters in 1893, the copyright for “Happy Birthday to You”was first filed for in 1935. Based on events and publications that occurred in the interim, and the nature of the 1935 copyright registration filing, Judge George H. King ruled that the copyright granted rights only to specific piano arrangements of the music, not the actual song. While the question of whether the song was in the public domain remained a question of fact, the failure of Warner/Chappelle Music to prove it held a valid copyright to the song had that practical effect to answering that question in the affirmative.

In response to the September 22, 2015, order, the victorious plaintiffs initiated a class-action lawsuit seeking that Warner/Chappelle Music repay thousands who licensed the right to use the song for profit.

The settlement to the class-action lawsuit is of undisclosed terms and precludes the need for a trial to determine who, if anyone, owns the rights to the song and address potential back royalties owed to performers dating back to 1949. The settlement brings to a close a complex intellectual property saga spanning nearly 125 years.

Of note, United States copyright law generally provides for copyright terms for the life of the author(s) plus 70 years for private works, and 120 years after creation or 95 years after publication, whichever is earlier, for works of corporate authorship. The length of copyright term, as clearly illustrated by the above example, shows that copyrights remain a powerful tool to an intellectual property portfolio of individuals and corporations alike.

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