No “Happy Birthday” for Trolls? Filmmaker seeks public domain judgement on song’s copyright

“Happy Birthday to You” is protected by copyright? The song is based on the tune from “Good Morning to All,” written in the late 1800′s. Over the years families adapted the tune for singing birthday greetings. Vexed with paying synch fees for use of the song in a film, producer Jennifer Nelson of Good Morning Productions asked a court to determine that “Happy Birthday to You” is in the public domain. Read her story at the NY Times. The case is great news! The “Happy Birthday to You” copyright claim begs several important public domain questions. Works published before 1923 in the United States are in the public domain. Would the apparently “crowd-sourced” change of lyrics lengthen the song’s copyright? Warner/Chappell Publishing purchased the song from a small publishing company that claims the song was copyrighted in 1935.  Did the original applicant actually author the new lyrics and get a license for the song? Or was he lucky to file the first application for the suddenly popular song? Are the lyrics sufficently creative to be protected?

Is Warner/Chappell a troll? No. It purchased a popular song with a $2,000,000 per year royalty stream. “Happy Birthday to You” must properly be considered Americana that belongs to everyone. Policing cultural works using Americana based on a questionable claim of ownership smells a hair trollish. Given the copyright questions and Warner’s interest in protecting its revenue stream, the case should be as fascinating as Prince v. Cariou case or the Cafe Hon dilemna.

Hat tip to Clean Cuts.

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