In On Your Case, I noted that copyright law makes commercial use of the song “Happy Birthday to You” a costly choice. That’s because music publisher Warner/Chappell, claiming copyright in the song, collects a reported $2 million in royalties from users who want the cheerful tune to grace their movie or television show. (The Hollywood Reporter offers more detail here.)
But one producer, Jennifer Nelson, cried foul, and sued when she was charged $1,500 to use “Happy Birthday” in a documentary about the song. Years of litigation passed and, just as the judge was set to rule on the case, the filmmaker’s lawyers have uncovered evidence that suggests the song’s lyrics were published without a formal copyright notice, an omission that they argue could strip the song of copyright protection — and Warner/Chappell of its right to copyright revenue. (The company is contesting the legal implication of the evidence.)
I won’t wade too deeply into the copyright weeds, which are especially dense for songs (given that lyrics and tunes can obtain independent protection). But while I am a big supporter of legal protection for songwriters and musicians buffeted by the ease of stealing music in the digital age, it’s possible that this particular song no longer warrants its paywall. Let’s see what the judge has to say.