A new lawsuit being filed today aims to have “Happy Birthday” declared as belonging to the public domain. The proposed class action is brought by a film company that is working on a documentary about the “Happy Birthday” song. During the making, the producers were informed that they would need to pay a $1,500 synchronization license fee to use the song in the documentary. The producers paid for fear of being liable for up to $150,000 in penalties for copyright infringement.
But now, Good Morning to You Productions Corp. has filed a lawsuit on behalf of all those in film, television and elsewhere who are paying for rights to “Happy Birthday.” The plaintiff aims to force Warner/Chappell Music to return millions of dollars collected over the years for what the lawsuit calls “the world’s most popular song.”
The background for this is that, while the song itself was written in the 19th century, its modern form was copyrighted just in time to qualify under the Mickey Mouse Protection Act. More importantly, apparently one of the rules for holding the copyright is apparently to be a d*ck about it; aggressively enforcing the copyright has been a tradition. Which is why the lawsuit – which argues that parts of the copyright are superseded by previous copyrights, and that other parts are not valid targets for copyright, and other lawyer-related stuff – might actually succeed; the trouble with charging all that the market will bear is that when you do a bit more than that then the market comes after you loaded for bear.
Shorter moral: if this lawsuits succeeds then Warner/Chappell Music is going to wish that they only had charged fifty bucks a pop and not been so aggressive on the subject.
PS: As a good general rule of thumb: watching the proponents of a policy position openly admit that they’re abusing the clear language of the Constitution should make it really, really easy to pick sides. Give a gimlet eye to people who think that copyrights should endure forever; they may have other unsavory habits.