Why you don't hear 'Happy Birthday' in the movies

Why you don't hear 'Happy Birthday' in the movies

Imagine having to pay money to sing Happy Birthday at your kid’s party. Surprising, right? Believe it or not, someone says they own that song and, like many types of intellectual property, you should be paying to use it – at least in the US. However, this may not be the case for much longer.

In the US, a Class Action Complaint was recently filed against Warner/Chappell Music, Inc. which claims ownership of the world’s most popular song: Happy Birthday to You.

The action seeks a declaration from the courts that the copyright claimed by Warner/Chappell is invalid; a declaration that Happy Birthday to You is now in the public domain and therefore can be used freely by the public; and the return of the millions of dollars collected by Warner/Chappell for unlawful licensing fees based on its wrongful claim of owning the copyright in the song.   

The Happy Birthday lyrics are set to the melody of an earlier song called Good Morning to All which was composed circa 1893 by two Kentucky sisters, Mildred and Patty Hill. The lyrics themselves appear not to have been published until 1911, although they seem to have been in use since 1901. It is important to note that copyright can subsist in different parts of a whole. In a song, for example, copyright can exist independently in both the music and the lyrics.

The basis of the lawsuit is that copyright in the melody for Happy Birthday expired many years ago, as it was not renewed at the appropriate time, and the song entered the public domain. This argument highlights the differences between the registrable (and renewable) copyright model used in the US and the unregistered copyright system here in NZ.

Would this happen in NZ? Unlike the US, copyright is not registrable here and does not need to be renewed. In the US, at the time Good Morning to All was composed and the Happy Birthday lyrics penned, once registered your copyright had a 28-year term before you had to renew it.

Should Warner/Chappell be worried? It charged the plaintiff of the lawsuit US$1,500 for a license to use the Happy Birthday song. That cost adds up quickly and given the fact that they may have been licensing a product they had no rights to – and such a famous and loved one at that – the courts could come down heavily on them.

Whatever the outcome, this lawsuit drives home the importance of copyright and its ability to subsist in the most everyday things. As a copyright owner it is of utmost importance that you are aware of the duration for which you can exercise your authority based on the relevant copyright term.

This is happening in the US today but are we safe in NZ? Not necessarily. As a signatory to the Berne Convention, NZ has agreed to acknowledge and enforce another foreign signatory’s copyright protection but only for so long as the term allowed by NZ copyright law. Copyright is territorial so NZ copyright is a separate property subject to separate rules. People who create a copyright work in NZ should be aware that they may be able to get copyright protection overseas through the Berne Convention.

In NZ, the copyright term for musical works is the life of the author plus 50 years from their death. Mildred Hill, who composed the melody, died in 1916 therefore, if she had been a New Zealander, copyright to the melody would have expired in 1956. Patty Hill, who penned the lyrics, died in 1946 so copyright to the lyrics in New Zealand would have expired in 1996. If it could be shown that the melody was a joint authorship then it would also have expired in 1996 as the 50 year term would commence after the death of the last author. This again highlights the dichotomy in the way both the US and NZ go about protecting copyright.

How long should copyright last? Different terms of protection are found in different countries. NZ is currently negotiating the Trans-Pacific Partnership Agreement – the US is pushing for the copyright protection term to be increased to life of the author plus 70 years from their death. Ultimately, it is something for each country to legislate on.

What do you have to do to protect your copyright in NZ? Short answer, nothing; except live a long and healthy life and try and have as many Happy Birthdays sung to you as possible.

Kim McLeod is a partner and Thomas Robinson-Piper is an executive at AJ Park. 

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