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Filmmakers sue to put 'Happy Birthday' song back in public domain

A girl looks at a cake at a 40th birthday party.
Brian Snelson/Flickr/Creative Commons
A girl looks at a cake at a 40th birthday party.

A music licensing company in Santa Monica claims it owns the copyright to the "Happy Birthday" song, but a production company filed a $5 million lawsuit in New York on Thursday challenging the claim.

Good Morning to You Productions says it paid a $1,500 licensing fee to use "Happy Birthday to You" in a scene from its documentary about the song. The filmmakers want their money back, and they want to make the song free to use for everyone.

Some researchers trace the song's origins to the 1890s. Los Angeles-based entertainment attorney Jonathan Handel says any work created before 1923 is no longer under copyright, but publishing company Warner/Chappell Music may have a valid argument in its rights to the song. Warner/Chappell is a unit of the massive Warner Music Group, which owns such music labels as Asylum, Atlantic, Elektra, Nonesuch, Reprise, Rhino and Warner Bros.

"One of the issues here is that Warner/Chappell does have a copyright based on a piano arrangement of the song that, I think, was done in 1935, and what the plantiffs say here is, at most, they've got a copyright of the piano arrangement, not the underlying song itself," Handel said.

Handel said many people are uncomfortable with the degree to which copyright law has been extended in recent years. 

"The extension of 20 additional years of copyright in the late 20th century was largely lobbied for at the insistence of Disney, who didn't want Mickey Mouse to fall into the public domain," Handel said. "So there's a real corporate interest in strong copyrights, even though the Constitution — which is where copyright is derived from — says that copyright should be a balancing act between the rights of creators on one hand and the rights of later users on the other."

The class-action lawsuit includes plantiffs that paid to use the "Happy Birthday" song anytime within the last four years.

The licensing company has not commented on the lawsuit.

Happy Birthday Song Lawsuit