A little over two years ago we noted the filing of Good Morning to You Productions v. Warner/Chappell Music, a class action law suit which seeks a declaratory judgment that Warner’s putative copyright on the ubiquitous ditty “Happy Birthday to You” is invalid, along with the refund of millions of dollars in licensing fees collected by Warner over the past several years. Now, on the very week when we learned that convicted spy Jonathan Pollard will be set free after serving 30 years of a life sentence, there are developments in the “Happy Birthday to You” case that may lead to its release into the public domain long before the expiration of Warner’s copyright in 2030.

 The plaintiffs claim they have found a “smoking gun” which proves that any copyright to the tune and lyrics of “Happy Birthday to You” was forfeited back in the 1920s, and that therefore the 1935 copyright registration by the Clayton F. Summy publishing company, which Warner later acquired and has been enforcing, covers nothing other than a particular piano arrangement of the tune. Turns out that a publication called The Everyday Songbook, which went through many editions, included the music and lyrics to “Happy Birthday to You” at least as early as the 1922 edition, and that the song appeared there without any copyright notice. Under copyright law as it then existed, strict observance of formalities was critical, and a publication without notice of copyright claim forfeited the copyright and put the work in the public domain.

End of story? Not so fast, says Warner, who points out that  a publication without notice only divested the copyright if done with the consent of the copyright holder.

The plaintiffs respond that The Everyday Songbook attached the following legend to the song: ““Special permission through courtesy of The Clayton F. Summy Co.” Therefore, they argue, the requirement of consent is met.

Warner, however, argues that the legend falls far short of proof of consent “of the copyright  holder.”  Specifically, they argue that the copyright holders at the time of the publication were not the Summy Company, but the original authors of the song, Patty and Mildred Hill, or their heirs. Thus, Warner contends, the plaintiffs still need to find proof that the Hills consented to the publication of the song without copyright notice back in 1922. Good luck with that, Warner’s submission to the court implies, blandly stating: “We are not aware of any other documents that might shed light on these issues.”

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