Hold the Birthday Cake–For Now

Warner/Chappell isn’t ready to give up its claim to millions in royalties for “Happy Birthday” just yet.

Last month, the publishing company essentially lost what is arguably one of the more lucrative and unusual copyright privileges in the English-speaking world, when a judge a federal court in California ruled the company did not, in fact, have ownership to the rights for the lyrics and music to “Happy Birthday,” a 122-year-old song, and therefore did not have the right to collect royalties for its use.

In his decision, issued on Sept. 22, Judge George H. King in the US District Court for the Central District in Los Angeles found that the publishing company and its predecessor, Summy-Brichard Inc, failed to thoroughly and properly secure the rights because, on the final contracts signed in the 1940s, the registration did not name any of the three sisters credited with writing the song in the late 1890s, and “we cannot presume this registration reflects the Copyright Office’s determination that Summy Co. had the rights to the lyrics to copyright them,” going on to say that the sisters made “no claim to the lyrics.”

Unsurprisingly, the publishing company has filed an appeal, asking the court to reconsider its decision or, failing that, grant it a speedy court date to hear its full appeal right away.

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In the 25-page appeal, filed Oct. 15, the company’s attorneys argue that the judge in this case “clearly erred in refusing to extend” the full copyright protection and ownership to the publishing company simply because the sisters’ names were not included in the last contract, signed in 1944, and Warner/Chappell’s rights to collect royalties ended then and there.

Essentially, the appeal claims that courts “uniformly apply the presumption of validity where errors in registration are non-fraudulent and immaterial. That rule applies where the registration omits or misstates an author, because that is an immaterial error.” The copyright registration named an author, Preston Ware Orem, responsible for the musical arrangement, but did not name Patty Hill, who is believed to have written the lyrics.

“The registration claims copyright over both the ‘arrangement’ and the ‘text’. Hence, the most that can be said is that the registration omits the name of all co-authors…. There is no evidence or even any contention by Plaintiffs that the omission was an attempt to defraud the Copyright Office. Even if the Plaintiffs presented evidence that Summy was not authorized to publish and register the lyrics, the evidentiary effect…would not disappear. The dispute, at most, would create a triable issue of fact,” the appeal states.

But, if the court isn’t comfortable overturning its own decision and publicly saying it made a mistake in reviewing the arguments made before it–something legal experts tell Geeks and Beats is unlikely–the end goal here might be to hear an appeal, and quickly. The appeal asks for Judge King to hear arguments on overturning the decision “on November 16, 2015, or as soon thereafter as counsel may be heard…” By asking the court to either reconsider its own decision or grant “interlocutory appeal,” it’s likely Warner/Chappell wants to re-argue the case, this time claiming any gaps in copyright protection were due, essentially, to clerical errors and that any reasonable court would get this and not make them lose their estimated $2 million per year in royalty payments.


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