Now, the most famous ditty in the English language has found itself in the middle of a legal battle after a film production company filed a lawsuit seeking to overturn the copyright protecting the song.
The proposed class action asks a federal court to declare the song to be in the public domain and that Warner/Chappel Music Inc, the music publishing arm of Warner Music Group, return ‘millions of dollars of unlawful licensing fees’ it has collected for reproductions and public performances of the song.
The filmmaker, Jennifer Nelson, was producing a documentary movie, tentatively titled “Happy Birthday,” about the song, the lawsuit said. In one proposed scene, the song was to be performed.
But to use it in the film, she was told she would have to pay $1,500 and enter into a licensing agreement with Warner/Chappell, the publishing arm of the Warner Music Group. Ms. Nelson’s company, Good Morning to You Productions, paid the fee and entered into the agreement, the suit says.
“Before I began my filmmaking career,” Ms. Nelson said in an e-mail forwarded by her lawyer, “I never thought the song was owned by anyone. I thought it belonged to everyone.”
The lawsuit notes that in the late 1800s, two sisters, Mildred J. Hill and Patty Smith Hill, wrote a song with the same melody called “Good Morning to All.” The suit tracks that song’s evolution into the familiar birthday song, and its ownership over more than a century.
But although Warner/Chappell claims ownership of “Happy Birthday to You,” the song was “just a public adaptation” of the original song, one of Ms. Nelson’s lawyers, Mark C. Rifkin, said in a phone interview.
“It’s a song created by the public, it belongs to the public, and it needs to go back to the public,” Mr. Rifkin said.
A spokesman for Warner/Chappell declined to comment on the suit. The company paid $25 million in 1988 to acquire Birchtree Ltd., a small company whose musical holdings included the birthday song.
Mr. Rifkin cited an estimate that Warner/Chappell collected approximately $2 million per year in licensing fees for the song. He added that the suit asks that the firm return all the fees for the song it has collected in the past four years.
The rich history of the song’s evolution and the conclusion that it might be in the public domain closely tracks the findings of Robert Brauneis, a professor at the George Washington University Law School and the author of a 68-page article titled “Copyright and the World’s Most Popular Song.”
In the study, Professor Brauneis said that “it is doubtful that ‘Happy Birthday to You,’ the famous offspring of ‘Good Morning to All,’ is really still under copyright.”
“I believe this song is in the public domain and therefore it is not owned by anyone,” Professor Brauneis said in a phone interview on Thursday. He said “Happy Birthday to You” was “economically significant” in that it “still produces millions of dollars of income in a year,” and that a successful legal challenge “might be a model for challenges to other songs.”
He said that another of Ms. Nelson’s lawyers, Randall S. Newman, had spoken with him about his study, but that he was not a consultant in the lawsuit.
Ms. Nelson is not the first documentarian to confront the issue of paying to use the Happy Birthday song. The filmmaker Steve James paid $5,000 to use the song in the acclaimed 1994 documentary “Hoop Dreams,” in which it is sung at a man’s 18th birthday party.
“It was an important scene,” Mr. James said in a 2005 article in The New York Times, “there was some amazement that Arthur had made it to 18. Of course, we wanted that in.”
Ms. Nelson, asked what she envisioned for her documentary, responded in the e-mail that her film would be about the “song’s history and its future.” The suit seeks to be given class-action status on behalf of all others who have paid licensing fees for it since 2009.
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OP: Don't songs go into the public domain after 75 years? Why should Ms. Nelson have to pay for a song in the public domain?