[78-L] Happy Court Day to You

[Cary Ginell]

I wrote this article in Sept, 2003, which was published in Music Reports' "Smart Licensing" newsletter.  I didn't think anybody would have the nerve to challenge Warner Chappell. Love this story!
http://accounting.musicreports.com/smart_licensing/content_article.php?article_id=44&title=P.D.+or+Not+P.D.%3F+That+is+the+Question+-+The+Happy+Birthday+Controversy
Cary Ginell

> Date: Fri, 14 Jun 2013 17:43:09 -0400
> From: dlennick at sympatico.ca
> To: 78-L at 78online.com
> Subject: [78-L] Happy Court Day to You
> 
> About time somebody challeneged this ludicrous situation.
> 
> dl
> 
> > http://www.nytimes.com/2013/06/14/nyregion/lawsuit-aims-to-strip-happy-birthday-to-you-of-its-copyright.html
> > <http://jazzpromoservices.us2.list-manage1.com/track/click?u=3186fe64133adb244b1010be2&id=233f64e8cc&e=dce4828319>
> >
> >
> >   Birthday Song’s Copyright Leads to a Lawsuit for the Ages
> >
> > Hiroko Masuike/The New York Times
> >
> > Jennifer Nelson, holding a 1924 songbook, “Harvest Hymns,” that includes the
> > words “Happy Birthday to You” set to the music of “Good Morning to All,” a song
> > written in the late 1800s.
> >
> >
> >             By BENJAMIN WEISER
> >             <http://jazzpromoservices.us2.list-manage.com/track/click?u=3186fe64133adb244b1010be2&id=d7b107d328&e=dce4828319>
> >
> >
> > The song “Happy Birthday to You” is widely credited for being the most
> > performed song in the world. But one of its latest venues may be the federal
> > courthouse in Manhattan, where the only parties may be the litigants to a new
> > legal battle.
> >
> >
> > The dispute stems from a lawsuit filed on Thursday by a filmmaker in New York
> > who is seeking to have the court declare the popular ditty to be in the public
> > domain, and to block a music company from claiming it owns the copyright to the
> > song and charging licensing fees for its use.
> >
> > The filmmaker, Jennifer Nelson, was producing a documentary movie, tentatively
> > titled “Happy Birthday,” about the song, the lawsuit said. In one proposed
> > scene, the song was to be performed.
> >
> > But to use it in the film, she was told she would have to pay $1,500 and enter
> > into a licensing agreement with Warner/Chappell, the publishing arm of the
> > Warner Music Group. Ms. Nelson’s company, Good Morning to You Productions, paid
> > the fee and entered into the agreement, the suit says.
> >
> > “Before I began my filmmaking career,” Ms. Nelson said in an e-mail forwarded
> > by her lawyer, “I never thought the song was owned by anyone. I thought it
> > belonged to everyone.”
> >
> > The lawsuit notes that in the late 1800s, two sisters, Mildred J. Hill and
> > Patty Smith Hill, wrote a song with the same melody called “Good Morning to
> > All.” The suit tracks that song’s evolution into the familiar birthday song,
> > and its ownership over more than a century.
> >
> > But although Warner/Chappell claims ownership of “Happy Birthday to You,” the
> > song was “just a public adaptation” of the original song, one of Ms. Nelson’s
> > lawyers, Mark C. Rifkin, said in a phone interview.
> >
> > “It’s a song created by the public, it belongs to the public, and it needs to
> > go back to the public,” Mr. Rifkin said.
> >
> > A spokesman for Warner/Chappell declined to comment on the suit. The company
> > paid $25 million
> > <http://jazzpromoservices.us2.list-manage2.com/track/click?u=3186fe64133adb244b1010be2&id=7abc3d5bdc&e=dce4828319>
> > in 1988 to acquire Birchtree Ltd., a small company whose musical holdings
> > included the birthday song.
> >
> > Mr. Rifkin cited an estimate that Warner/Chappell collected approximately $2
> > million per year in licensing fees for the song. He added that the suit asks
> > that the firm return all the fees for the song it has collected in the past
> > four years.
> >
> > The rich history of the song’s evolution and the conclusion that it might be in
> > the public domain closely tracks the findings of Robert Brauneis, a professor
> > at the George Washington University Law School and the author of a 68-page
> > article titled “Copyright and the World’s Most Popular Song.”
> >
> > In the study, Professor Brauneis said that “it is doubtful that ‘Happy Birthday
> > to You,’ the famous offspring of ‘Good Morning to All,’ is really still under
> > copyright.”
> >
> > “I believe this song is in the public domain and therefore it is not owned by
> > anyone,” Professor Brauneis said in a phone interview on Thursday. He said
> > “Happy Birthday to You” was “economically significant” in that it “still
> > produces millions of dollars of income in a year,” and that a successful legal
> > challenge “might be a model for challenges to other songs.”
> >
> > He said that another of Ms. Nelson’s lawyers, Randall S. Newman, had spoken
> > with him about his study, but that he was not a consultant in the lawsuit.
> >
> > Ms. Nelson is not the first documentarian to confront the issue of paying to
> > use the Happy Birthday song. The filmmaker Steve James paid $5,000 to use the
> > song in the acclaimed 1994 documentary “Hoop Dreams,” in which it is sung at a
> > man’s 18th birthday party.
> >
> > “It was an important scene,” Mr. James said in a 2005 article
> > <http://jazzpromoservices.us2.list-manage.com/track/click?u=3186fe64133adb244b1010be2&id=182d15dfec&e=dce4828319>
> > in The New York Times, “there was some amazement that Arthur had made it to 18.
> > Of course, we wanted that in.”
> >
> > Ms. Nelson, asked what she envisioned for her documentary, responded in the
> > e-mail that her film would be about the “song’s history and its future.” The
> > suit seeks to be given class-action status on behalf of all others who have
> > paid licensing fees for it since 2009.
> >
> >
> >             A version of this article appeared in print on June 14, 2013, on
> >             page A24 of the New York edition with the headline: Birthday Song’s
> >             Copyright Leads to a Lawsuit for the Ages.
> >
> >
> > 		
> >
> >
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