Feel free to sing “Happy Birthday” in public, because a court just said Warner wasn’t able to prove it owns the song — and if a major corporation that has been charging people (millions!) for decades to sing the song can’t actually prove it holds the rights, then I would bet money that nobody can.

The song “Happy Birthday” was originally written and published in the 1800s, and the melody is clearly in the public domain. Warner was claiming copyright only over the lyrics, but it has been making millions from licensing the simple lyrics “Happy Birthday to you … ” in a variety of movies and entertainment venues.

A documentary filmmaker elected to resist, suing for a declaratory judgment that Warner did not own the copyright.

Warner lost, because it was not able to prove that it owned the copyright. Why? Because it is really difficult to maintain records over the course of many decades.

We librarians and archivists know this already, of course; it’s why we have whole departments (hi, SCUA) dedicated to preserving and making accessible archival content. Even still, content will sometimes get “lost” or simply not be preserved in the first place.

That’s the situation Warner found themselves in: They didn’t have the original contracts, and the Copyright Office registrations were spotty. So Warner ended up having to rely on old testimony and newspaper quotes from Patty & Mildred Hill about how they composed the work — and they weren’t able to prove, ultimately, that they owned it. (Evidence geeks! Did you notice the “ancient records” exception?)

So, a fun lesson for copyright aficionados: The burden of proving you own a copyright is always on the rightsholder claiming infringement.

And a not-so-fun lesson for rightsholders who are always arguing for longer terms and fewer registration / renewal requirements: The long copyrights you seek are only as strong as the documentary proof that you actually own them.

Cheers,

Laura

eta: People have asked me if this decision will stand. I do imagine Warner is likely to appeal, but this is primarily a trial court weighing questions of evidence. The standard for an appellate review of a trial court’s evidentiary findings is very high — basically that the trial judge made obvious errors.  I haven’t reviewed the record (the materials submitted) so it’s hard to say, but the opinion doesn’t suggest a lot of room for interpretation. There’s just no evidence on some key points that Warner needed to prove — i.e., that it owns the copyright.  No evidence is hard to get around.

But Warner can afford really good lawyers, who could try to get around the issue with creative argumentation, or by doing more research and finding other documentation to prove their copyright.  So Warner has to decide: Is it worth the expense of litigating to try to hang onto a few million in royalties annually?  What are their odds of winning and losing on appeal, and is there a chance that they would establish a bad precedent if they appeal?

That’s just to appeal this part of the case.  The second part of the case is an argument that Warner has to pay back millions of royalties they unjustifiably claimed (what legal scholar Jason Mazzone has termed “copyfraud”).  This part of the case raises some additional interesting issues, and if it bolsters the doctrine of copyright misuse, I’ll be really happy.  I’m also curious to know what Warner might be liable for — how far back could the court go in looking at old revenues?  I don’t know, but now I want to find out.

Further reading:

• Nancy Sims’ excellent post about the same issue, from when the lawsuit was filed; read this, now.
• Glenn Fleishman, “The Tangled History and Mysterious Legality of ‘Happy Birthday'”, Fast Company.
• Tyler Ochoa, “Chain of Title Proves Fatal to ‘Happy Birthday’ Copyright Claim”, Technology and Marketing Law Blog, Oct. 5, 2015