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For the 1994 documentary “Hoop Dreams,” filmmaker Steve James had to pay $5,000 to Warner/Chappell for the privilege of using a very brief rendition of “Happy Birthday To You."
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For a low-budget movie such as “Hoop Dreams,” that’s a lot of money. The fees for using the song can go much higher for big-budget productions. It’s one of the reasons why you’ll often hear people singing “For He’s a Jolly Good Fellow” at birthday parties in movies and TV shows, because that song is in the public domain and can be used for free.
Now, a new class-action lawsuit filed by documentary filmmaker Jenn Nelson argues that “Happy Birthday to You” should also be public domain. (Don’t worry, you can always sing it for no charge at your kids’ party.) The case, being argued before a federal judge in Los Angeles, puts New York-based Good Morning to You Productions against Warner Music Group publishing.
Nelson was charged $1,500 to use "Happy Birthday" in a documentary she was making about the history of the song. During research for the film, she happened upon a 2010 paper by George Washington University Law School professor Robert Brauneis that argued the copyright was actually invalid. Nelson found the paper so convincing she took the issue to her lawyer.
"In the film industry it's a bit of a joke to have to pay for the song," Nelson said on The Frame. "People think it's ridiculous, but they do it anyway because the fee ... doesn't hinder you from doing it. It's just sort of inconvenient and annoying. I took it to my lawyer, Randall Newman, and we decided that we actually had a good case and we decided to file."
Evidence submitted by the prosecution argues that the song really entered the public domain as early as the 1920s, and that music publisher Warner/Chappell's 1935 copyright is not valid. The firm currently collects an estimated $2 million a year in licensing fees for the song.
An attorney representing Warner/Chappell could not be reached for comment on this matter, but you can read their full counter-argument below.
New evidence — which Nelson's calling the "smoking gun" — is a 1927 songbook that published "Good Morning and Birthday Song" apparently without any copyright notice. Her lawyers argue that, in accordance with the 1909 Copyright Act, the publication of that song without a copyright makes it fair game.
"If we win, our goal is to release the song into the public domain where it belongs and where we think its been all along," Nelson said. "It's the people's song, it belongs to the people. We think people should be able to use it however, whenever, wherever they'd like. Hopefully, once we get the decision, people will be able to do that. The monetary part of the equation is sort of step two of the lawsuit."
The judge is currently reviewing the 200 pages of new evidence and Nelson expects a decision within months.
Happy Birthday lawsuit - Original Complaint
Happy Birthday Lawsuit - Warner/Chappell Music Response