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Do Filmmakers Need to Pay to Use the Song “Happy Birthday?”

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By Ron Merk

For years all of us thought that the song Happy Birthday was something that belonged to all of us, part of our collective consciousness and certainly in the public domain. However, Warner/Chappell Music says they own it, and they charge varying fees for its use.

Given the fact that the song was written in the late 19th Century, and modified in the 1920s to add one note, it would seem to me that if any new copyright started in the twenties, it would certainly have expired by now, even with the Sony Bony Copyright Extension Act.

But the controversy rages on. Check out the recent article about a filmmaker who’s challenging Warner’s “rights” to this song.

Jennifer Nelson filed for a class action suit against the publishing company, Warner/Chappell, who owns the right to the song’s tune, originally a song called “Good Morning to All” written by two sisters in the late 19th Century.

Nelson’s tentatively titled documentary “Happy Birthday” includes a scene where the song is performed, and she arranged for a $1,500 licensing fee to secure the rights to use the song. Eventually, though, she came to realize that, under her interpretation of the law, Warner/Chappell didn’t own the rights to the tune. Richard Brauneis, a George Washington University law professor who agrees with her. He’s written a 68 page article in which he alleges that the song is in the public domain.

I’ve reached out to a number of Bay Area attorneys and rights clearance people and asked them their opinions. Most were not certain exactly what to do about this thorny issue, mostly because of the power and money of Warners. But my personal attorney, George M. Rush, sent me this quote:

“This is hard. I believe the copyright has expired, but Warner/Chappell continues to assert its rights. For filmmakers who lack the resources to litigate, I would be hesitant to move forward without a license as the cost of licensing is minimal compared the cost of litigation. Hopefully the current litigation involving the song will clear this matter up quickly.”

There’s also the recent posting on line by attorney, Marc D. Ostrow:

Sometimes the answer is not clear about a copyright issue, and now the whole issue of the copyright law is being looked at again, and some serious changes (and hopefully, clarifications) of such thorny issues at length of copyright and fair use will be sorted out.

As they used to say on the news when I was a kid, “film at eleven.” In other words, more later.