Charles Kramer, The Levison Group
Every now and then, we at the Levison Group like to give a "shout out" for a job well done. This week's shout goes to the Honorable George King, of the United States District Court for the Central District of California, for his efforts to restore a bit of dignity to a hallowed, but ill-thought out tradition.
You all know the scenario. A group of well-meaning people gather in their favorite chain or theme restaurant for a bit of nachos and nostalgia, when out of the dark recesses (or perhaps the kitchen), a hoard of clapping, stomping, wait staff descend upon them chanting their own strangely grotesque "original" happy birthday mantra:
"Happy Birthday, Happy, Happy Birthday
Happy Birthdays, they're so much fun
Happy Birthday, Happy, Happy Birthday
Here's wishin' you a happy one."
Or, even worse,
"Birth, Birth, Birth,
Day, Day, Day.
Happy, Happy, Happy
Birth, Birth Day."
You get the drift. There may be nothing so embarrassing, annoying, or just plain life-scarring as the public humiliation that results from off-key renditions of songs that are simply not songs," restaurant owners, managers, and overseers felt the need to forbid their enthusiastic employees from singing the actual "Happy Birthday" song because of fears that doing so would drain their delicately balanced coffers. The tune we all know and love, you see, was being claimed as a copyrighted work, which could not be used in a profit making environment without permission and due compensation. Apparently, some misguided marketing geniuses believed that people actually were visiting their restaurant so that they can be sung to by their waiter - a fact that, if it were true, would make the singing a profit generating activity, triggering a need to pay. If a restaurant were to sing the song four or five times a day, its tab would skyrocket pretty quickly.
We need fear the wrath of the misguided songsmiths no longer! On September 22, 2015, Judge King ruled that Warner Chappell Music, the company that has been enforcing the "Happy Birthday to You" copyright since 1988 to the tune of a couple million dollars a year, does not actually own a valid copyright. Judge King determined that the tune to the song had become "public domain" and available to everyone some time ago, and that the copyright the company asserted covered the lyrics, simply did not. Apparently the purported authors of the song, the Hill sisters, penned the tune as "Good Morning to You" using lyrics that used that phrase, rather than "Happy Birthday to You." They assigned their rights to the original song, and thus the tune, to the company that published their book which contained it, and that copyright expired in 1949. From that point forward the tune and the "Good Morning to You" lyrics could be used by anyone. The book did not contain the "Happy Birthday" lyrics, however, and the court opinion finds that they were not published anywhere until 1911, and that they were not attributed to anyone in that publication. Several other non-attributed publications followed, until the song was used in a play entitled "As Thousands Cheer." In 1934, Jessica Hill filed suit against the producers of the play, claiming the use of the song in that play violated the original copyright because the "Happy Birthday" song used the "Good Morning to You" tune. When Patty Hill was deposed in that case, she claimed under oath (in response to a blatantly leading question), that she had written the "Happy Birthday" version lyrics around the same time as the original song was written. Nonetheless, the case did not concern the lyrics and its ruling had no impact on any rights to them.
In fact, the first federal copyright registration for the song using the "Birthday" lyrics was filed by a company called the Charles F. Summy Company in 1935. However, even that copyright did not necessarily protect the lyrics. In a 1944 lawsuit between the Hill sisters' foundation and the Summy Company, the Hills agreed that they had assigned the rights to various melodies for the song to the Summy Company, but argued that the assignment did not include the rights to use those melodies in feature films. That case was settled with some payments to the Hills and additional assignments of rights by the Hills to the Summy Company. Thereafter the Summy Company filed suits to enforce its rights in "Happy Birthday" based on the original and later assignments from the Hills, but, importantly to Judge King, never claimed the copyright registration filed in 1935 pertained to the lyrics. Judge King determined that, in fact, it did not cover the lyrics, but only particular musical arrangements. Accordingly, the judge found, the lyrics were never filed for federal copyright protection and rights to them were never transferred to Warner Chappell or its predecessors.
Because this ruling just occurred, and other aspects of the case continue, we do not yet know if this ruling will be appealed and, if so, what the Appellate Court may determine. For the time, being, however, it appears that thanks to Judge King, everyone may be able to use the original lyrics, royalty free, and those annoying pseudo-birthday songs may quickly disappear from the restaurant landscape. We will soon be able to attend restaurants with an expectation of a modicum of decorum and peace.
Or, maybe not. After all, nothing in the judge's ruling will protect any of us from the inevitable increase in off-key restaurant renditions of the original, or the Mexican restaurant version howled by Midwestern teenagers, sporting sombreros and carrying a Mexican dessert with a sparkling candle in it while singing in English ...
Under Analysis is a nationally syndicated column of the Levison Group. Charles Kramer is a principal of the St. Louis, Missouri law firm Riezman Berger PC. Comments or criticisms about this column may be sent to the Levison Group c/o this newspaper or to the Levison Group at comments@levisongroup.com.
© 2015 Under Analysis L.L.C.
Published: Fri, Oct 16, 2015
