“Happy Birthday” may be the most performed English song in the world. Until recently, its lyrics were thought to be protected by U.S. copyright law (the melody, however, entered the public domain in 1949), which meant that anyone performing “Happy Birthday” had to have the permission of the song’s alleged copyright holder, Warner/Chappell Music, Inc., or the performance had to be a “fair use” (http://copyright.gov/fair-use/more-info.html) of the song. When we fete a friend or family member with a rendition of “Happy Birthday” at a private party, our use likely is a “fair use” of the song that does not require the copyright holder’s permission. Post a video of that performance on YouTube, however, where millions of views nets you thousands of dollars, or incorporate the performance into a movie shown to the public, and you likely would need to pay a fee to Warner/Chappell to secure its permission for you to use the song in that way. You may have noticed servers at restaurants, such as TGI Friday’s, recognizing a diner’s birthday with a “Happy Birthday” song that sounds nothing like the “Happy Birthday” we all know.  Why? To avoid having to pay thousands of dollars to license the “Happy Birthday” lyrics. Warner/Chappell can’t enforce its alleged copyright in “Happy Birthday” against everyone who may violate it. That’s practically unfeasible. The more money you receive or the higher your earning potential from using or performing the song, though, the more you are likely to attract Warner/Chappell’s attention and be required to pay a fee to use or perform the song.

 At least that was the case until this past September when a federal district court judge in California ruled that Warner/Chappell Music, Inc. was never assigned, and therefore does not own, the copyright to the famous “Happy Birthday” lyrics (https://assets.documentcloud.org/documents/2429288/marya-v-warner-chappell.pdf). The ruling means that anyone may use or sing “Happy Birthday” without having to get permission from, or pay a fee to, Warner/Chappell. These fees have been estimated at $2 million annually. Additionally, the court may find that Warner/Chappell must reimburse the fees it collected from those who used or performed “Happy Birthday” over the last four years.

 Many have incorrectly stated that the court’s ruling means that the “Happy Birthday” lyrics are now in the public domain (http://www.latimes.com/local/lanow/la-me-ln-happy-birthday-song-lawsuit-decision-20150922-story.html; http://www.foxnews.com/us/2015/09/23/federal-judge-rules-happy-birthday-song-in-public-domain/; http://www.npr.org/2015/09/23/442907049/federal-judge-rules-happy-birthday-is-in-the-public-domain; http://www.theguardian.com/business/2015/sep/23/us-judge-rules-happy-birthday-is-public-domain-throws-out-copyright-claim); that anyone may perform the song without permission from, or paying a fee to, anyone. That is not what the court held, and whether the lyrics are no longer copyright protected depends in large part on who wrote them. It may be impossible to prove who wrote the “Happy Birthday” lyrics, in which case the Warner/Chappell ruling would mean that the lyrics are in the public domain. In the Warner/Chappell case, the court analyzed Warner/Chappell’s claim that Patty Smith Hill wrote the lyrics in the late 1800s. The court weighed the evidence for and against Ms. Smith having authored the “Happy Birthday” lyrics and determined that it could not decide this issue before trial. The court simply held that even if Ms. Smith had written the “Happy Birthday” lyrics, Warner/Chappell had failed to establish that those words had been assigned to it.

 What is important here, is that if Ms. Hill wrote the “Happy Birthday” lyrics, then her estate may still own the copyright them because unpublished (which includes unauthorized publications), unregistered works created before 1978 are protected by copyright for the life of the author plus 70 years (http://www.copyright.gov/pr/pdomain.html). The Warner/Chappell court found no direct evidence that Ms. Hill or any of her sisters with an ownership interest in the “Happy Birthday” lyrics authorized any publication of the words, and  Ms. Hill died on May 25, 1946. The “Happy Birthday” lyrics, then, would not enter the public domain until January 1, 2017 (copyright protection for the lyrics would expire on that date whether or not Ms. Hill’s estate were to register the copyright for the lyrics now; of course, her estate would have to register the copyright to the lyrics to be able to enforce the copyright in court). Whether Ms. Hill wrote the famous lyrics, or whether she forfeited the copyright through one of the ways discussed in the Warner/Chappell case, is not definitive. Therefore, we cannot say with certainty at this time that the “Happy Birthday” lyrics now belong to all of us. So hold off on posting that YouTube video of your kid’s birthday party.