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Nelligan O’Brien Payne gratefully acknowledges the contribution of Lyndra Griffith, Arts & Entertainment Law lawyer, in co-authoring this blog post.

The world of arts & entertainment and intellectual property law collided on Monday in a manner that should have a small but noticeable effect on all of us. Have you ever noticed that “Happy Birthday” is rarely sung in full in movies and television shows? Perhaps even more interestingly, were you aware that until last year, it was arguably illegal to sing the most famous song in the English language in a public setting?

First, some background: it is generally accepted that the song “Happy Birthday” was written by two American school teachers in the late 19th century. Specifically, legal and music scholars support the position that Mses. Patty and Mildred Hill wrote the lyrics and fit them to a melody that was widely used in other songs of the time.

Copyright law exists to protect authors and artists by awarding these creators exclusive rights over their creations. In the United States, copyright protection extends for a term 70 years past the creator’s life pursuant to a 1998 law titled the “Sonny Bono Copyright Term Extension Act” or, more derisively (given the significant corporate lobbying efforts that aided the passage of the law) the “Mickey Mouse Protection Act”.

In Canada, copyright protection currently extends 50 years past the creator’s life but this likely could change with Canada’s recent signing of the Trans-Pacific Partnership.

Accordingly, and given that the last of the two Mills sisters died in 1948, the lyrics to the song “Happy Birthday” under the current US law could be protected by US copyright law until the end 2016.

Copyright is transferable, and music publishing house Warner/Chapell Music (“Warner”) purportedly acquired copyright in the song in 1988 and has asserted these rights ever since, even arguing that due to the unclear circumstances surrounding the authorship of the song, the term of US copyright protection extended until 2030!

However, given the sheer cost of challenging Warner’s claim to copyright in the song, most film, radio and television producers simply chose not to use the song in full (often by omitting the lyrics) or paid a royalty for the public performance of the song. This resulted in a significant revenue stream for Warner; reportedly as much as $2 million annually in 2008.

In June 2013, documentary filmmaker Jennifer Nelson started a class action lawsuit in the Federal Court for the Southern District of New York. After reviewing extensive testimony of leading scholars on the matter, in September 2015 Judge George King ruled that Warner’s copyright claim was invalid for a number of reasons but declined to go as far as ruling that the entirety of the song (i.e. both the lyrics and melody) was in the public domain.

On February 8, 2016, Warner entered into an agreement that included a settlement fee of $14 million to end the class action suit, thereby avoiding any punitive damages for its years of now-unauthorized royalty collections. Moreover and quite unusually, the parties have agreed to a judicial declaration that the song is now, at last, in the public domain.

So in conclusion, feel free to sing as loudly as you wish when celebrating the next birthday on your social calendar …and keep your ear attuned the next time you hear the song on the big (or little) screen.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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