'Smoking Gun' Found in 'Happy Birthday' Lawsuit

They're presenting evidence that song is in the public domain, not owned by Warner
By Elizabeth Armstrong Moore,  Newser Staff
Posted Jul 29, 2015 8:49 AM CDT
Updated Aug 1, 2015 7:56 AM CDT
Filmmakers Sue: No, 'Happy Birthday' Isn't Copyrighted
In this May 19, 1962 photo, Peter Lawford tends to Marilyn Monroe's fur as she prepares to sing "Happy Birthday" to President John F. Kennedy in New York.   (AP Photo/Courtesy Running Press)

In what the New York Times called the "lawsuit of the ages" when it was first filed two years ago, a new development is making the case even juicier with "smoking-gun evidence" that one of the world's most popular songs is in fact in the public domain, reports the Hollywood Reporter. Documentary filmmaker Jennifer Nelson, who had to pay Warner/Chappell a $1,500 licensing fee to use the "Happy Birthday" song in her film—which happens to be about the song itself—says her legal team has found proof in a 1927 children's songbook that Warner/Chappell handed over earlier this month as part of "approximately 200 pages of documents [Warner/Chappell] claim were 'mistakenly' not produced during discovery" last year, her lawyers write. (The full legal doc is in pdf form on Scribd.)

The 1927 songbook was published eight years before Warner/Chappell's 1935 copyright. It included two songs, "Good Morning" and "Happy Birthday," both of whose lyrics were written by Patty Hill and set to the tune of "Good Morning to You," which was composed in the 1800s. The birthday song even appeared in earlier editions of the book dating back to 1922. Unlike other songs in the book, it was printed without a copyright notice, but rather with a blurred line reading, "Special permission through courtesy of The Clayton F. Summy Co." (Apparently this was the only line in the entire book that was blurred.) This notice is key because, under the 1909 Copyright Act in place at the time, any songs published without copyright were interjected "irrevocably" into the public domain, reports Ars Technica. If there was a 1922 copyright it would have expired in 1949, and even if it was renewed it would have expired again at the end of 1997. Warner/Chappell, which makes $2 million a year on licensing fees alone for the song, has yet to respond to the motion, and a hearing is scheduled for today. (More Happy Birthday stories.)

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