The decades-old copyright for "Happy Birthday to You" could be overturned if plaintiffs prevail in a case in California.
According to CBS News
, a judge could order that millions of dollars be refunded to people who have licensed the song in recent years from Warner/Chappell Music.
The plaintiffs in the case include a California musician, a film producer, and two New York music producers after they paid fees to license the song.
A ruling in favor of the plaintiffs would put the song in the public domain so that it was no longer subject to royalties.
Alternatively, the judge could decide that the copyright is valid and damages would be awarded at a later date.
A third possibility is that the judge could say he didn't have enough information to make a ruling, in which case the matter would go to trial.
The plaintiffs say that the song's copyright expired by 1921.
"More than 120 years after the melody to which the simple lyrics of 'Happy Birthday to You' is set was first published, defendant Warner/Chappell boldly, but wrongfully and unlawfully, insists that it owns the copyright to 'Happy Birthday to You, Happy Birthday to You,' and with that copyright the exclusive right to authorize the song's reproduction, distribution, and public performances pursuant to federal copyright law," the plaintiffs argued in court papers, according to CBS News.
They added that Warner/Chappell "either has silenced those wishing to record or perform or has extracted millions of dollars in unlawful licensing fees from those unwilling or unable to challenge its ownership claims."
It is estimated that the company receives at least $2 million annually from the song.
A ruling in favor of the plaintiffs could have wider consequences, potentially undermining the copyrights of other popular songs.
"There are other songs out there ... for which this case would set a precedent," said Robert Brauneis, co-director of the Intellectual Property Law Program at George Washington University Law School, who argued in a legal journal article that "Happy Birthday" should never have been copyrighted in the first place. "Copyrights are not bulletproof."
An unpaid consultant to the plaintiffs believes they have a strong case.
"There are a number of weaknesses in the copyright of 'Happy Birthday,' but in my view the clearest and most significant weakness is this: The renewal registrations for the song, which under then-current copyright law were necessary to maintain copyright after 1962, only cover certain piano arrangements, and do not cover the basic combination of words and music," Brauneis wrote in an email to CBS News.
"I don't think that was inadvertent," he added. "I think that at the time everyone thought that they were only claiming protection for arrangements of an old song, and then later someone had the idea that maybe they could try to claim more. The challengers to the copyright of 'Happy Birthday' have a number of additional grounds for their challenge, including abandonment, because for a very long time, no one enforced the copyright in the song."
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