The price of Banksy’s anonymity
What is the background to Banksy’s copyright dispute with fashion brand, Guess?
Warner–Chappell claim ownership of copyright in the lyrics for the famous song Happy Birthday to You and have made a lucrative business in licensing its use in commercial enterprises such as films, stage productions, television shows, restaurants and greeting cards.
That business has been estimated to be worth in the region of £1.3 million ($2 million) a year but now appears to be at an end, as a US federal judge has granted a summary judgment holding that Warner–Chappell do not hold any valid copyright in the lyrics. Since the music was already out of copyright, businesses in the US can now make unfettered use of the song.
Class action was brought against Warner–Chappell in 2013 by Rupa Marsa and Robert Siegal, after they were asked to pay £970 ($1,500) for the right to use Happy Birthday to You in a film about the song. The plaintiffs argued that the song was in the public domain and should not be subject to copyright fees.
Happy Birthday to You is over a hundred years old and its history is rather uncertain. A song called Good Morning to You with the same melody and verse structure was written by two sisters, Mildred and Patty Hill, around 1893. The lyrics “Happy Birthday to You” appear to have been devised sometime later, and were first published in full around 1911, but no one knows for certain who wrote the lyrics. Patty Hill claimed authorship in the 1930s but this has not been established as fact.
There were a number of copyright assignments from the Hill sisters to Clayton F. Summy, from whom Warner–Chappell derived their rights. The Judge found that that the Hill sisters gave Summy rights to the melody and certain piano arrangements but that there was no clear evidence that they had assigned the lyrics. There was also doubt as to whether a copyright registration in 1935 on which Warner–Chappell had relied was in fact a registration covering the lyrics. The judge felt it was most likely that this was a registration for a piano arrangement of the melody rather than the lyrics.
The full judgment by US District Judge George H. King in the Central District Court of California can be found here at PlainSite.org.
Warner–Chappell has said that they will review the decision in detail and consider their options. It does appear that they will appeal the decision and the outcome of any such appeal will be interesting.
Just as a note of caution, certain aspects of the song Happy Birthday to You may still be subject to copyright in the UK and elsewhere outside of the US.
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