It’s one of the most important copyright cases in history and it looked to be done and dusted – but the legal battle over ownership of Happy Birthday (To You) might not be over yet.
The song had reportedly been netting Warner/Chappell around $2m a year before documentary filmmaker Jennifer Nelson filed a putative class action case against the major publisher in 2013.
Nelson was making a film about the history of Happy Birthday, and was annoyed by Warner/Chappell’s insistence that she pay a $1,500 licence fee to use the composition.
From there, a highly significant lawsuit – not to mention useful PR for Nelson’s production – has unfurled.
The last major step came in September, when federal judge George H King ruled that Warner/Chappell’s copyright claim was invalid, giving summary judgement to the plaintiffs.
This decision effectively rested on the timely uncovering of a 1922 manuscript which contained the Happy Birthday lyrics. Warner/Chappell’s copyright dated back to 1935.
King’s ruling looked to be the end of the battle – with the only question marks surrounding whether Warner would appeal, and whether they would be made to pay out some of its historic earnings from the song.
But in a new twist, a US charity called the Association for Childhood Education International has filed a motion to intervene in the case.
“As the beneficiaries of Jessica Hill’s estate, both ACEI and the Hill foundation have a very real and present interest in this litigation.”
In a motion which you can read in full through here, ACEI’s lawyers claim that the organisation had been receiving one-third of all revenues generated from Happy Birthday for over 20 years – and is largely reliant on this money to continue operating.
Warner’s copyright is based on its control of Happy Birthday through the Clayton F Summy Co.
ACEI argue that the song’s original author, Patty Hill, and her sister, Jessica Hill, had directly assigned rights to Summy Co – which would make Warner/Chappell the song’s rightful controller.
Patty Hill, says the motion, was both a founding member and ‘active participant’ in ACEI.
It also claims that the Hill sisters founded and split ownership of an organisation called The Hill Foundation 50/50 in 1942, and this group assigned a number of copyrights to Summy Co – including Happy Birthday, when the one-third split was agreed.
When Jessica Hill died in 1951, her will directed income from certain assets – including the royalty stream paid by third parties for public performance use of Happy Birthday – to her nephew, Archibald Hill.
But there was a further clause, says ACEI: if Hill died without biological or adopted children, these rights were to be passed to ACEI.
Archibald Hill died in 1992 with no children.
“As a result, as the author of the lyrics in the Song, it is very likely that Patty Hill still possessed all copyrights in those lyrics at the time of her death,” states the ACEI motion.
“Patty Hill bequeathed her entire estate to Jessica Hill, which would include those copyrights, as well as her fifty percent interest in the Hill Foundation.
“When Jessica Hill died, her entire estate ultimately went to ACEI, which included ownership in the Hill Foundation, as well as those same copyrights.
“As the beneficiaries of Jessica Hill’s estate, both ACEI and the Hill Foundation have a very real and present interest in this litigation.”
The motion was filed yesterday (November 9).
ACEI awaits a decision on whether its intervention is deemed justified and ‘timely’ considering how far the case has progressed.Music Business Worldwide