No royalties for trite infants’ rhyme

happy pay dayIP Draughts is a fool [/star].

IP Draughts is a fool [/star].

IP Draughts is moronic [/fantastic].

IP Draughts is a fool [/star].

Please don’t repeat these lyrics, in either version, or IP Draughts may be compelled to sue you for copyright infringement.

Or he may get his agent to demand $1,500 per use, depending on his mood.

It seems ridiculous that repeating the words of the song, Happy Birthday to You, could be an infringement of copyright, and require the payment of royalties to a well-known music publishing company. Yet that is what has been happening, apparently for decades, in the United States.

Yesterday, a court decision in California changed all that. The case has wrongly been described as deciding that the lyrics of this song are in the public domain. See, for example, this tweet from the Law Society of England and Wales today:


Unfortunately, the BBC (and therefore the Law Society) has it wrong. This case didn’t bring the Happy Birthday to You into the public domain. Rather, it said (among other things) that Warner/Chappell didn’t own the US copyright (if it existed) and therefore couldn’t sue people for copying the work.

Check the judge’s reasoning for yourself. The case is called Rupa Marya et al v Warner/Chappell Music, Inc, et al, Case No CV-13-4460–GHK (MRWx). It is a decision made by Chief United States District Judge King on September 22,2015 in the United States District Court for the Central District of California.

Judge King ‘bifurcated’ the trial, so we don’t yet know whether Warner/Chappell will be ordered to repay ‘millions of dollars of unlawful licensing fees’ as the plaintiff requested.




Filed under Intellectual Property

2 responses to “No royalties for trite infants’ rhyme

  1. Thanks Vance. I don’t disagree with any of your comments. Much as I dislike the idea, I recognise that the interleaving of one short phrase (that might not get copyright on its own) with another short phrase (ditto), repeated twice, might well get past the low threshold for copyright. In fact, I am thinking of registering a trade mark for the service of commenting on this subject: “I can’t believe it’s not public domain!”(TM)

  2. vrkoven

    I hope you don’t think that the insipidity of the words would prejudice their eligibility for copyright. Copyright inheres in any “original” literary work, but US courts have uniformly held that “original” refers to the work’s being the creation of the author rather than at a certain level of creativity (beyond a purely mechanistic application of an algorithm, as with alphabetical phone directories). Copyright originality is quite different to patent novelty.

    The opinion in Marya is dense and has some things in it that might be questionable, including the court’s failure to acknowledge that under the 1909 Copyright Act some circuits (not the 9th, which governs the district court in this case) did hold that public display and performance amounted to publication (for example, the 1st circuit, which includes Massachusetts, where I live).

    Nevertheless, the court was making its views fairly clear that the plaintiffs would probably be able to prove that at least one of the pre-1923 publications of the Happy Birthday lyrics (that’s the key date under current law, since all works published before then are now public domain) was with the consent of the author, in which case it would have knocked it out of both common-law and statutory copyright, and made sense of the author’s statement later that she had reconciled herself to the words being freely available. The procedural posture of the case made it impossible for the court to rule that this was so as a matter of law, since the facts were in dispute and so the plaintiffs would have to persuade the fact-finder of them.

    Under the court’s specific findings, it is now difficult to see who could assert copyright in the lyrics any more. The author or authors never did, and never seem to have even considered doing so. Patty S. Hill died in 1946, so even if her common-law copyright survived those early publications, it would expire, as the law now stands, next year. Sounds like public domain to me, whether de jure or de facto.

    I look forward to the results of the damages hearing.

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