Warner Music's Response To Evidence Of Happy Birthday In The Public Domain: Who Really Knows Anything, Really?

by Mike Masnick
Techdirt
Jul. 29, 2015

Earlier this week, we wrote about fairly damning new evidence that almost certainly shows that the song "Happy Birthday" is in the public domain, and not, as Warner Music's Warner/Chappell claims, still covered by a copyright that it holds (and ruthlessly enforces). The evidence was in the form of a 1922 songbook that published the music and lyrics to Happy Birthday, noting that it was via "special permission through courtesy of the Clayton F Summy Co." The Summy company is who registered the copyright in 1935, and which Warner eventually bought. Warner has long argued that there was no pre-1935 publication. As the lawyers for the plaintiffs ("Good Morning To You Productions" -- who are making a documentary film about the song) pointed out, the publishing of the song and lyrics in 1922 without a copyright notice pretty clearly establishes the song is in the public domain. Even if there were a copyright on the original songbook, it would have expired.

It seemed pretty damning, but Warner/Chappell has quickly responded by basically trying to muddy the waters with a "well, who really knows what 'special permission' really meant" line, along with lots of other FUD about how Summy wouldn't have even owned the copyright at that point in the first place. Basically, Warner is just going to claim that none of this matters for as long as it possibly can. Watch the tap dancing:

Plaintiffs instead assert that it was Summy that authorized the 1922 and 1927 publications. Plaintiffs base this on the one-line statement that The Cable Company included in The Everyday Song Book. But that statement does not say what the "Special permission" was for--was it for Good Morning to All only? Was it for that work in combination with the Happy Birthday lyrics? The statement also does not say when such permission purportedly was provided or any other facts about that would show authorization divesting the Hill Sisters' copyright.

Let's see just how much we can confuse everyone by twisting this into knots. The longer we keep up the illusion, the longer people have to pay... so it's worth it...

Plaintiffs' evidence does not show the consent of the copyright owner. Plaintiffs argue that, because The Cable Company's 1922 publication contained the statement, "Special permission through courtesy of The Clayton F. Summy Co.," the 1922 publication must have had the necessary authorization from the copyright owner to divest the common law copyright.

In 1922, however, the Clayton F. Summy Co. ("Summy") did not own the copyright to Happy Birthday to You! Summy likewise did not own the copyright to Good Morning to All. In 1922, the copyrighted work Song Stories for the Kindergarten, which contained Good Morning to All, was in its renewal copyright term.... Jessica Hill, who had inherited part of Mildred Hill's interest in the renewal copyright term of Song Stories for the Kindergarten, timely filed a registration for the renewal term on September 3, 1921.... There is no evidence that the Hill Sisters (Jessica or Patty) granted anyone the right to publish the Happy Birthday to You! lyrics until 1935. The evidence instead shows that Summy sought and obtained a license to publish the Happy Birthday to You! lyrics from Jessica Hill in 1935.... Summy would not have had to secure a license from Jessica Hill if it already had the rights to Happy Birthday to You! or if the work had fallen into the public domain.

This seems like a lot of complexity for the sake of complexity -- just to come up with some sort of argument for why a clearly public domain work might not be in the public domain. Now we wait for the judge's ruling on all of this...