Happy Birthday Sues You – when do the candles get blown out on copyright?

The recent headline that a US court has ruled “Happy Birthday to You” is not subject to copyright will come as a shock to many. Not shock that a court has made such a ruling, but total disbelief that anyone could be claiming copyright in the song at all.

Happy Birthday Party Copyright

The US court decision is actually quite specific to the circumstances, holding that there is no copyright in the song but that the rights of the current owners, Warner/Chappell, are limited to specific piano arrangements of the melody and not to the lyrics - the song was originally written as “Good Morning to All”.

Warner/Chappell still do have some rights in at least the piano arrangements and may continue to fight the matter. The copyright has been very lucrative for them - since they acquired the company which owned it they have collected, on average, $2 million of royalties each year.

But surely such a well-known song can’t be subject to copyright and even if it were, surely by now it would have expired?

When does copyright exist and how long does it last?

People’s attitude towards the song is in line with the mistaken, but almost universal, assumption that anything which is in the public domain is fair game and can be copied without any restriction. This myth has been exacerbated by the unstoppable expansion of the worldwide web, publication on which automatically exposes the content quite literally to the world. So what are the rules?

In the UK, they are set out in the Copyright, Designs and Patterns Act 1988, which looked to bring UK copyright laws into line with other members of the European Union. The rights of a copyright holder are further expanded by an international convention which was signed many years ago. This ensures that the owner of copyright in one country which has signed up to the convention is given the same rights in other countries as you would have under their local laws, so that copyright is an international right and not limited by national boundaries.

While some countries, in particular the US, have a concept of registered copyright, the key distinguishing factor of copyright against other intellectual property rights is that it arises automatically without any need to register it. As soon as you have created a copyright work, you own the copyright in it and you therefore have rights to protect it from unauthorised use by third parties. And whatever you do with your work, be it a book, a film, a piece of music, a photograph, an audio or video recording, unless you give these rights away, no-one has the right to copy your work.

Certainly, most social network platforms require that if content is uploaded it is a condition of use that the platform owner either owns or is given a licence to use the works in whatever way they wish. Indeed for many uploading something to the internet is a positive step to ensure that it is circulated more widely and they have no intention of ever enforcing their copyright. But unless you know that to be the case, if you do copy a work or use it in any way you could be infringing the owner’s copyright.

When does copyright expire?

Surely for something as well-known and historic as the song “Happy Birthday” any copyright would have expired?

While there are different rules which have to be looked at which apply where works were created before changes in the law which took place in 1988, the duration of copyright in various works is now as follows:

Type of Work

Length of Copyright

Written, dramatic, musical and artistic work

70 years after the author’s death

Sound of Music recording

70 years from first publication

Films

70 years after the death of the director, screenplay author and composer

Broadcasts

50 years from  first broadcast

So in the case of Happy Birthday or any other song, you not only need to know when it was written, but also when the author died before you know if it is free from copyright.

So should you now stop singing “Happy Birthday” at birthday parties?

Perhaps because they knew of the public outcry which they would have faced had they tried to enforce such rights, Warner/Chappell as owners of the copyright (until now) in “Happy Birthday” never did – but they did look to obtain a royalty every time the song was used in a film, television broadcast, advertisement or other public performance.

It is unlikely that if you were singing any song or using it in any personal sense, that any action would be taken against you. But if your use of a song or other copyright work is in any commercial context or could damage the reputation of the author or the goodwill in the copyright work itself, perhaps by using a parody of it, action could be taken.

The rights of an owner of copyright include being able to prevent anyone, without permission, from copying their work, distributing copies of it (even if they don’t charge for them), performing the work in public, adapting it or putting it on the internet.

The owner might look for a royalty payment, but could also seek damages and if appropriate, a court order to stop further infringement.

Singing “Happy Birthday” at a party won’t get you into trouble, but for other songs, you might just want to think twice about what rights the author might have.

Scott Kerr is a Partner in the Corporate and IP Team with Harper Macleod LLP, Solicitors in Glasgow, Edinburgh and Inverness.

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