Settlement reached in ‘Happy Birthday’ copyright case

A settlement has been reached in the lawsuit over the copyright of “Happy Birthday to You,� just days before a trial was set to begin to determine whether the ubiquitous song belongs in the public domain.

In September, a federal judge ruled that Warner/Chappell never had the right to charge for use of the song, and neither did any of the other companies that had collected millions of dollars in royalties for the tune since copyright was first granted in 1935.

The lawsuit, filed in 2013 by a group of filmmakers who argued that the song should be in the public domain, has highlighted the complex saga behind the song’s origins.

It was written in 1893 by Patty Smith Hill, a Kentucky kindergarten teacher, and her sister, Mildred J. Hill, who titled the tune “Good Morning To All.� The sisters published it in a book called “Song Stories for the Kindergarten� and assigned the copyright to their publisher, Clayton F. Summy Co., in exchange for a cut of the sales.

The “Happy Birthday� lyrics were added later, and since then the song’s path to copyright has grown murky.

Warner had been enforcing rights to “Happy Birthday� since 1988, when it purchased Birch Tree Group, the successor to Summy Co.

The song has meant big bucks: By some estimates, Warner has collected as much as $2 million a year in royalties; a company representative told the court earlier this year that Warner had charged as much as “six figures� for certain single uses of the song.

On Wednesday, Judge George H. King of the Central District of California wrote that “the court has been advised that the parties — plaintiffs, defendants and the intervenors — have agreed to settle this case.�

King vacated the trial, which would have heard arguments on who, if anyone, owns the rights to the song.

It was unclear what immediate effect the settlement would have for filmmakers and others seeking to use the song or perform it publicly. (While private performances are allowed, until recently Warner had asked for royalties from anyone who wanted to sing or play “Happy Birthday to You� with its lyrics as part of a profit-making enterprise such as a stage production, television show or greeting cards.)

The terms of the deal have not been disclosed, but a person with knowledge of the settlement said the entire case addressing the validity of the copyright and potential damages owed has been resolved and there will be no further appeals.

Among the parties agreeing to the settlement were the Assn. for Childhood Education International, a designated charity of the Hill family that receives a third of the profits from the song’s licensing, and the Hill Foundation. Since King’s ruling in September, both have asserted that, as heirs to the Hill sisters’ materials, they were the true owners of the lyrics.

If the settlement does in fact stipulate that the parties give up all claims to the song, it is unlikely that any other entity could credibly claim ownership of the song, said Robert Brauneis, a George Washington University law professor. That, Brauneis said, would in effect remove all barriers to public use.

The stakes were raised this week when King left the door open for plaintiffs to make claims on back royalties paid to Warner, Birch Tree and Summy Co. dating to 1949.

In a ruling filed Monday, the judge gave the plaintiffs the go-ahead to file a claim based on that timeline, but said he would determine later whether, if the filmmakers prevailed, Warner would have to pay damages back that far.

Among those who paid Warner for use of the song was the Walt Disney company, which has in the past been a fierce defender of its own extended copyrights. In 1964, Disney offered to pay Warner $1,000 for five uses of “Happy Birthday To You,� despite asserting that the song was “definitely in the public domain,� according to documents filed in the Warner case. Disney’s attorneys later wrote that “a small payment is better than expensive litigation,� but added that they believed they would prevail in a lawsuit.

A Warner spokesman said that “While we respectfully disagreed with the court’s decision, we are pleased to have now resolved this matter.�

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