Happy Birthday Copyright Saga Not Over Yet: Warner Asks Judge To Reconsider, Filmmakers Push For Public Domain Ruling

from the not-over-yet dept

Fri, Oct 16th 2015 9:24am — Mike Masnick

Last month, as you may recall, Judge George King said that Warner/Chappell did not hold a valid copyright in the lyrics to the song "Happy Birthday." Many news reports falsely claimed that he had declared the song to be in the public domain, but that's not what he said at all. As we noted, all this really did was turn the song into a giant "orphan work." And, of course, there's the simple fact that this is just a district court ruling that is likely to be appealed.

Recent filings have shown that both sides would like the case to continue, though in different ways. In a joint status report filed by both sides, the filmmakers (who want to use the song as the basis for their documentary) are asking the court to go through with the trial in order to make a final call on whether the song is really in the public domain:

Plaintiffs believe the Court should determine whether Happy Birthday is in the public domain together with its determination of Claims II and III of the Complaint (as to which there is no right to a jury trial). Plaintiffs believe that further proceedings on Claim One will not materially advance the ultimate disposition of the litigation.

And now, Warner/Chappell has basically asked the judge to reconsider the big ruling, or alternatively, to let them go straight to appeal on the issue of the validity of the copyright.

Warner/Chappell respectfully requests that the Court either reconsider the September 22, 2015 Memorandum and Order Re Cross-Motions for Summary Judgment (Dkt. No. 244) (the “Order”) or certify the Order for interlocutory appeal. Warner/Chappell makes this Motion with due recognition and appreciation for the substantial time and effort the Court invested in resolving the summary judgment motions. Warner/Chappell nevertheless believes that the Order satisfies the standards for reconsideration or certification.

The main argument by Warner is basically: "but, you're just supposed to assume the copyright is valid."

Courts uniformly apply the presumption of validity where errors in registration are non-fraudulent and immaterial. That rule applies where the registration omits or misstates an author, because that is an immaterial error.... That rule applies here. Registration E51990 identified as author Preston Ware Orem (author of the arrangement) but omitted the name of Patty Hill, who (the fact-finder could conclude, Order at 18-19) authored the “text” that the application claimed and that (the fact-finder could conclude, as shown) constituted the “familiar” lyrics of Happy Birthday. The registration claims copyright over both the “arrangement” and the “text,” (J.A. 48). Hence, the most that can be said is that the registration omits the name of all co-authors.

The Order effectively creates a rule that the omission of the name of additional co-authors deprived registration E51990 of any prima facie evidentiary presumption that Summy was authorized to publish and register the Happy Birthday lyrics. That was clear error under the applicable authorities. The omission of Patty’s name was immaterial: there is no basis in law, logic or evidence to believe the Copyright Office would have done anything different with the registration had her name been included. There is no evidence or even any contention by Plaintiffs that the omission was an attempt to defraud the Copyright Office. Even if Plaintiffs presented evidence that Summy was not authorized to publish and register the lyrics, the evidentiary effect of the prima facie showing would not disappear. The dispute, at most, would create a triable issue of fact.

But that's bogus. The wrong name on the application was only one issue, and a small one at that. The much bigger issue is the fact that it does not appear that the copyright registration in question really did apply to the lyrics. The Court focused mostly on a later legal dispute between Summy and the Hills, none of which would have made sense if the Hills really had transferred the copyright in the lyrics to Summy. Warner's response to that is to argue that the Court chose to ignore language in the agreement between the Hills and Summy. Accusing the court of ignoring language probably isn't going to make the court very happy, but I guess when you're desperate to keep a totally bogus $2 million+ revenue stream flowing, you gotta trying something. But, of course, the real idea here is to move it up to the appeals court:

If the Court does not reconsider the Order, Warner/Chappell respectfully requests that the Court certify it for interlocutory appeal...

In short: this is not over yet. Stay tuned.

Gov Uscourts Cacd 564772 246 0 (PDF)Gov Uscourts Cacd 564772 246 0 (Text)

Birthday (PDF)Birthday (Text)

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Filed Under: copyright, happy birthday, public domain
Companies: warner/chappell

22 Comments

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Anonymous Anonymous Coward, 16 Oct 2015 @ 9:36am

Life of the author fiction
So life of the author is a bogus concept when the copyright is transferred to a series of corporations that never die. After all, how DOES one add 70 years to infinity?
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PRMan, 16 Oct 2015 @ 9:49am

All I have to say is...
Happy Birthday to You
Happy Birthday to You
Happy Birthday dear Public Domain
Happy Birthday to You
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Anonymous Coward, 16 Oct 2015 @ 9:55am

Re: All I have to say is...
And... many more to make Warner (and the rest) sore.
Until they are kicked out the political door!!!
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Calvin Smith, 16 Oct 2015 @ 10:02am

Where's my name
I've just noticed that my name is missing from the copyright notice as well. According to Warner-Chappell that means I have a valid copyright claim. I can expect a cheque in the post shortly, can't I?
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Anonymous Coward, 16 Oct 2015 @ 10:34am

I still don't understand how it's soundly in the public domain.

The music already was in the public domain and the plaintiffs found that 1922 publication of the lyrics.

What more is there to argue?
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Anonymous Coward, 16 Oct 2015 @ 10:34am

Re:
*Isn't...in the public domain.
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andy, 16 Oct 2015 @ 11:09am

FINE!!!! NOT!!!!
Surely if it is found that the initial copyright was bogus which is what it seems, then Warner is in line to be forced to pay out many years worth of copyright profits, possibly in the trillions. Now that would be justice.
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andy, 16 Oct 2015 @ 11:11am

Re: All I have to say is...
just put a name in there and not the word "you" and there is no copyright at all.
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Ninja (profile), 16 Oct 2015 @ 11:16am

Dear public screw you
Dear public screw you
Fuck you all you and your rights
Dear public screw you

-Warner
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Anonymous Coward, 16 Oct 2015 @ 11:39am

Assume it's valid and ignore that we have been falsely extorting people for years over it for millions
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Anonymous Coward, 16 Oct 2015 @ 11:41am

Re: Life of the author fiction
you buy a politician or a DA and have them make a law solely for your benefit that also does not apply to anyone else retroactively.
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Anonymous Coward, 16 Oct 2015 @ 12:11pm

Should copyright expire with the author?
Copyrights were granted under the Constitution to the creator. Perhaps it should die with the creator.

Even if the Copyright were changed to only 28 years, you don't see Tony Hillerman, J.A. Jance, or Kathy Reichs taking 28 year to write each book. Come to think of it, that might not be a bad idea.
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Anonymous Coward, 16 Oct 2015 @ 1:00pm

Mootness and advisory opinions
Plaintiffs believe the Court should determine whether Happy Birthday is in the public domain

As long as Warner/Chappell does not own a valid copyright in the “Happy Birthday” lyrics, then, in a declaratory judgment action, the court should declare that the plaintiffs do not infringe Warner/Chappell's non-existent copyright, and then just STOP RIGHT THERE. After the finding of non-infringment based on non-ownership, then the public domain question is moot, and the court shouldn't touch it. Warner/Chappell is simply the wrong defendant in a declaratory judgment action against someone else.

The court should absolutely not issue an advisory opinion declaring how the court would decide the issue if the declaratory judgment plaintiff hauled a different declaratory judgment defendant into court.
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Black Art (profile), 16 Oct 2015 @ 1:16pm

What is missing in this discussion
What I find interesting is that almost everyone is glossing over how they found the proof that the copyright was invalid. Someone actually looked at the evidence presented at discovery, found blurred images, and tracked down the original pages. Why is it only *those* pages were blurred? Warner hid evidence. The question is if they will be punished for that.
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Anonymous Coward, 16 Oct 2015 @ 5:25pm

They should be required to pay back all of their ill gotten gains, that might get them to consider a halt to their harassment of the court.
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Mike Masnick (profile), 16 Oct 2015 @ 5:33pm

Re: What is missing in this discussion
The judge actually disregarded that evidence. His reasoning was over other evidence
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Anonymous Coward, 16 Oct 2015 @ 5:34pm

I warned you, Masnick. This isn't even close to being over. Warner's superior resources will win out over your sad, sad piratey buddies. And I'll be laughing long and loud, you fucking Chicken Little. Bawk! :)
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David, 16 Oct 2015 @ 10:13pm

Re: Should copyright expire with the author?
Do you argue for all material goods to be ceased by the government when someone dies as well?

No, copyright should not be tied to the author's life at all. A fixed amount of years from publication. That way everybody knows what he is selling or buying.

Retroactive copyright extensions are grave robbery, taking from the authors what they never sold, their cultural heritage, bleeding it dry for the sake of leeches who bargained for much less.
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Nate (profile), 17 Oct 2015 @ 8:19am

Re: Mootness and advisory opinions
And that is what the court did in its original ruling, yes.
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Kronomex, 17 Oct 2015 @ 2:43pm

So they're going to waste a big pile of dollars to try and keep something might equal 100th of 1% of the yearly cash intake. Pathetic!
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Anonymous Coward, 18 Oct 2015 @ 5:47pm

Re:
average_joe just hates it when due process is enforced.
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cpt kangarooski, 20 Oct 2015 @ 12:05am

Re: What is missing in this discussion
That wasn't proof of invalidity, unless it can be shown that the lyrics were published with the authorization of the copyright holder at the time. Unauthorized publication isn't held against the copyright holder.
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