Yesterday a federal judge ruled that Warner-Chappell does not own copyright in the lyrics to the song “Happy Birthday.” The lawsuit addressed only the lyrics, as the parties agreed that the music passed into the public domain long ago. The opinion is a beast, weighing in at a very dense 43 pages, and leaves the reader hanging until the very last minute.
The court addresses several issues, concluding (1) there is a genuine issue of material fact as to the authorship of the “Happy Birthday” lyrics; (2) there is a genuine issue of material fact as to whether a divestive publication of the “Happy Birthday” lyrics occurred (specifically, whether the lyrics were the subject of an authorized “general publication” under the Copyright Act of 1909 that divested the lyrics of common-law copyright protection); (3) there is a genuine issue of material fact as to whether the purported author abandoned her copyright in the lyrics; and, finally, (4) there is insufficient evidence to establish that the purported author ever transferred her rights in the lyrics to Warner-Chappell’s predecessor-in-interest.
It is important to note that, contrary to various assertions by commentators online, that the opinion does not hold that the lyrics are in the public domain. This is perhaps a wonky copyright distinction, but one that is substantively very important. The ruling holds only that Warner-Chappell does not own copyright in the lyrics. It is at least theoretically possible that some other party could come forward and establish ownership. This seems fairly unlikely, given that the song was authored in 1893 and solid evidence regarding chain of title has faded into the mists of time.
The resulting uncertainty highlights the problem of “orphan works” – works as to which it is very difficult, if not impossible, to establish ownership. The orphan works problem plagues many would-be users of works, who cannot identify or locate the owners of works they may wish to license. There have been many calls for a legislative fix of the “orphan works” problem, and we can only hope that Congress takes it up as part of the broader need for copyright reform.
In the meantime, happy birthday to everyone!