R. M. Kulkarni
While intellectual property rights have been created to foster creativity by protecting its creators, some entertainment conglomerates strive to maintain clichéd exceptions. This time around, it’s brought to you by our beloved Warner Brothers.
Imagine your musician self to wake on your birthday morning. Having already arrived in stealth, your friends-cum-band-members perform for you their take on the famous “Happy Birthday to You” song (“the Birthday Song”) while your parents carefully record the performance. You feel touched; and get the recording copied to a physical CD which holds all those songs your band manager has selected for pitching to the music producer. But your band manager calls up and apologizes that the Soundtrack will be rejected if you won’t remove the Birthday Song performance from the CD.
You: “What problem could they possibly have with an innocent yet fabulous retake on the world’s most commonly sung Birthday Song?”
Brand Manager: “It’s not the producer’s song to sell; and they don’t want to pay an exorbitant license fee to its owners.”
Yes, you got that right; the lyrics of the Birthday Song were protected through copyright under WB’s ownership. However, an Indian musician took it very seriously when asked to cough up more than $400 as license fee to WB just to add her band’s version of the song to her commercial CD. This culminated into Rupa Marya and others (“the Plaintiffs”) suing WB and Summy-Birchard Inc. (“the Defendants”) for declaration of invalidity of the latter’s copyright in the Birthday Song lyrics. Here’s the full text of the judgment.
Subsequently, Judge George King of the District Court of California (USA) ruled in favor of the Plaintiff; mainly because the true identity of the author of the Birthday Song could not have been established in the prevailing circumstances. The Birthday Song has now blissfully fallen into the public domain, enabling all of sing it with impunity.
Now to the hype and its hyena.
The Origin of the Birthday Song
The Record shows that Mildred and Patty Hill authored the song “Good Morning to You”(“the Morning Song”) in around 1893 and assigned their rights in that song to Summy and Co. The lyrics of the Birthday Song are similar to those of the Morning Song (refer to the Table below).
|The Morning Song||The Birthday Song|
|Good morning to you
Good morning to you
Good morning dear children
Good morning to all
|Happy birthday to you
Happy birthday to you
Happy birthday dear [NAME]
Happy birthday to you.
It was clearly established that the ownership in the Morning Songs, in both lyrics and in music, rested with in the Hill Sisters. But the Court refused to entertain the Defendants’ claim that the Birthday Song is only a “derivative work” of the prior Morning Song. This is because the lyrics of the Birthday Song had been published in various publications and movies between 1928 and 1933.
It was only four decades after authoring the Morning Song that the Hill Sisters took action against a public performance of the Birthday Song in a play called As Thousand Cheer. On the other hand, the lyrics in the Birthday Song were registered by Summy and Co. Two years later in 1935. Moreover, Patty Hill only claimed the Thousand Cheers suit for infringement of the melody in the Morning Song; and not for the lyrics in the either of the songs.
Ignorance is Bliss
After evidence was adduced, the Court came to the conclusion that that the authorship of the lyrics of the Birthday Song was indeed uncertain. This is mainly because the Plaintiffs successfully proved that there were numerous occasions where the said lyrics were published in between 1911 and 1928 under the authorship of persons other than any of the Hill Sisters. Furthermore, one of the publications cited writers Alice Jacobs and Ermina Lincoln as authors of the Birthday Song along with their copyright certificate. The Court then summarized its reasons for granting the Plaintiffs’ motion as stated below:
“For decades… the Hill sisters did not authorize any publication of the lyrics. They did not try to obtain federal copyright protection. They did not take legal action to prevent the use of the lyrics by others, even as Happy Birthday became very popular and commercially valuable. In 1934, four decades after Patty supposedly wrote the song, they finally asserted their rights to the Happy Birthday/Good Morning melody—but still made no claim to the lyrics.”
Consequently, the lyrics of the song have now become an orphan work, i.e. one whose author/creator cannot be traced. Now, there is indeed a possibility that the original author will emerge some day and prove it court that s/he is the real author of the Birthday Song; in which case such a person will be entitled to demand royalty for its use. However this possibility is bleak because at the time of its first publication in 1911, federal copyright protection required registration of the work. Furthermore, at the time a copyright was valid for 28 years unless renewed for the first and last time for another 28 years. Now unless the so called “real author; of the lyrics actually has a certificate, which has to get past that of Alice Jacobs and Ermina Lincoln, and that s/he has renewed it after the first 28 years of the term, the lyrics are safely in the public domain. And lastly, if this claim were to arise in India, the newly found real author would be barred by acquiescence to file any suit for infringement of his or her copyright in the Birthday Song.
The Next Question
As promised, there is a question which remains unanswered; and probably unasked as well.
What would be the implication of this judgment, or even without it, on the usage of the Indian counterpart of the Birthday Song- “Baar Baar Din Ye Aaye… Happy Birthday to You!”.
The reason behind asking it is that this song, which is widely used by many people across this country, has a perfectly valid copyright in it. It is probably owned by
Sunderlal Nahata and Jose Aynika, who produced the film Farz. Since the present Copyright Act was in force at the time, the owner of the work should be protected for upto 60 years after the death of its author.
Let’s just hope that owners of the Indian birthday song are either benevolent enough to let us keep singing the melody, or ignorant enough to do another Xerox and Thermos!
 Among others, WB has given us The Dark Knight! One must acknowledge such an invaluable contribution to mankind.
 Replicated from the judgment.