By Russell D. Christian, Esq.
www.vegasentertainmentlawyer.com is excited to announce that this week marks our First Birthday! What started as a humble blog to provide legal information for my musician friends has evolved into that and much more. In the past year I’ve managed to provide legal updates on issues such as copyright law, music licensing, contracts, rodeo sports, playing recorded music in bars, “guerilla filmmaking”, the Songwriter Equity Act, house concerts, YouTube, Prince (RIP), and the recent DOJ Consent Decree. I’ve also been fortunate enough to attend and provide coverage for local events such as the Las Vegas Film Festival, the PBR World Finals, and the Sunset Songwriting Festival . A big Nevada-sized THANK YOU to all of the readers, contributors, and everyone who has helped make this blog possible. I started this blog as a legal resource for people in the entertainment industry and I remain committed to providing quality content and coverage of important events!
The second year looks even more promising, with many entertainment law issues in the news and, as usual, no shortage of great entertainment events in Las Vegas. If there are any particular issues you would like me to address, or events you think I should cover, feel free to email me at firstname.lastname@example.org or find me on twitter @LawyerRussell. In light of our first birthday, it’s only fitting that we briefly examine an important legal update that has occurred in the past year-the copyright issues surrounding the “Happy Birthday” song.
In case you are wondering why this article is accompanied by a risqué (at least by 1950’s standards) birthday photo of Marilyn Monroe, it’s because the “Happy Birthday” song is of course famously associated with Ms. Monroe due to her performance for then-President John F. Kennedy on the occasion of his forty-fifth birthday. And of course, leave it up to lawyers to make something as simple as singing Happy Birthday for a friend require a complicated legal analysis as to who wrote it, who owns it, and who (if anyone) can get paid if someone sings it.
For anyone in the entertainment business, the “Happy Birthday” song is famous for being the bane of producers everywhere for years, as the song was copyrighted and the copyright holders were famously protective of their prized song, often demanding huge sums for its use in film and TV. Not surprisingly, many TV shows and movies have for years used alternative songs in scenes involving a birthday celebration, with the public domain tune “For He’s a Jolly Good Fellow” often serving as a substandard alternative.
Even public performances of the song were not immune to the copyright holders, who were vigilant in collecting their royalties. Ever wonder why every chain restaurant has their own unique (and typically bad) “birthday song” they sing to patrons? It’s because you would have to pay for a public performance of copyrighted work-I bet you didn’t realize how much the law impacted your Applebees’ experience?!
The long history of the origin and subsequent copyrighting of the song “Happy Birthday” is an exhaustively researched topic which has been written about in far greater detail than I care to delve into on a Friday night. In fact it is the subject of an upcoming documentary, and I understand that the filmmakers were also parties to the litigation. For the purposes of this article, just know that the former copyright holders based their claim on a 1935 copyright registration by The Summy Company which credited the song to Preston Orem and R. R. Forman (arguably not the actual songwriters).
All of that changed, however, this past fall when Judge George H. King ruled in Marya v. Warner/Chappell Music, Inc., 131 F. Supp. 3d 975 (C.D. Cal. 2015) that the 1935 copyright on “Happy Birthday” granted only the rights to specific piano arrangements of the music, not the actual song. The opinion itself is an excellent treatise on copyright law and perhaps the most exhaustive, researched, and well-cited summary of the song’s history, origins, and copyright status that you will ever find. The opinion states that, as a musical work, “Happy Birthday” has “at least two” copyrightable elements, the music and the lyrics, and each element is protected against infringement independently. See 1-2 Nimmer on Copyright § 2.05. The Court’s opinion then delves into the long, storied history of the composition and its subsequent copyright, and ultimately held that since The Summy Company never acquired the rights to the lyrics for “Happy Birthday” in 1935, the Defendants, as Summy Company’s purported successors-in-interest, do not own a valid copyright in the lyrics to “Happy Birthday”.
As a result of this bombshell ruling, it was reported in February 2016 that a proposed settlement deal amongst the parties would place “Happy Birthday” in the public domain. To date, the Marya decision has not been appealed, and it was further reported in February 2016 that “Happy Birthday” would enter the public domain, with the former copyright holders paying a reported $14 million in reimbursement to people who have paid for its use in the past.
Once “Happy Birthday” enters the public domain, expect to see it being used in TV, film, and commercials ad nasuem. Hopefully this is good news to any filmmakers reading this who plan on having a birthday scene in their production. So, after all of this talk of Happy Birthday, let’s enjoy what is probably my favorite use of the song “Happy Birthday” in the history of cinema. Here’s to another year!