The plaintiffs in this action seek a declaration from the Court that the world’s most popular song of all time, Happy Birthday to You, is in the public domain. The plaintiffs also intend to seek a refund of all fees paid to Warner/Chappell for permission to use the song.
Two sisters, Mildred and Patty Hill, wrote and composed a children’s song called Good Morning to All around 1893. Patty Hill has said she later wrote the famous Happy Birthday lyrics as an adaptation of that earlier work. The songs share a common melody, but have different words. The copyright to the melody expired by 1949. In 1935. Preston W. Orem, who worked for the Clayton F. Summy Co., composed a piano arrangement of the melody in 1935. Relying on a copyright for Mr. Orem’s piano arrangement, Warner/Chappell, which purchased Summy in 1988, claims to own a copyright to the song itself. However, Warner/Chappell admits that Mr. Orem did not write the song’s lyrics.
After collecting extensive historical material, the plaintiffs have moved for summary judgment, arguing that the copyright covers only the new work done by Mr. Orem in 1935 – his piano arrangement – and not the lyrics written by Patty Hill. Satisfied with the copyright to Good Morning that she shared with her sister, Patty Hill gave the Happy Birthday lyrics to the public. Therefore, Happy Birthday is not covered by the copyright protecting Mr. Orem’s piano arrangement. Recently, the plaintiffs discovered a version of Happy Birthday published by The Cable Co. in 1922 without a copyright notice. Under the Copyright Act in effect at the time, the 1922 publication without a copyright notice extinguished any copyright that might have existed.
The action is captioned Good Morning to You Productions Corp. v. Warner/Chappell, Inc., et al., No. CV 13-04460-GHK (MRWx). The case is pending before Hon. George H. King, Chief Judge of the United States District Court for the Central District of California. Mark C. Rifkin is lead counsel for the plaintiffs.