Free for a Fee

There may be no song more widely sung in America than “Happy Birthday,” but it isn’t free to sing. Warner Chappell music licensing, which has long claimed copyright to the words, typically dings filmmakers and TV producers a few thousand bucks for a “synchronization license” any time the song is used in video. Warner reported that by the 1990s the “Happy Birthday” licensing enterprise was pulling in upwards of $2 million annually.In June, a filmmaker who paid $1,500 to use the song in a documentary (called “Happy Birthday”) challenged Warner Chappell in court. The filmmaker’s lawyers argued that the 1935 copyright isn’t valid—at most, it covers a particular piano arrangement and a second verse to Happy Birthday which has no commercial value. The melody has been around since 1893, argues the complaint, and the “Happy Birthday to You” lyrics were in wide use by the early 1900s. The plaintiffs hoped to form a class action and make Warner pay back everyone who’s paid a license fee since mid-2009.

A status update filed in court on Monday offers a first glimpse of some of the defenses Warner may use. In its brief statement, first mentioned by The Hollywood Reporter, Warner lawyers explain it’s on the plaintiffs to prove that the 1935 copyright registration “was not intended to cover the lyrics to Happy Birthday to You.”