Happy Birthday’ is probably one of the best known songs in the world. Sung at parties for young and old, the familiar lyrics and catchy tune repeatedly ring out in homes around the world. But if you think about it, it is surprising how uncommon it is to hear the refrain included in films, TV programmes or on the radio.

The reason for this is simple to explain.

For decades, Warner/Chappell the huge music publishing house has been charging a licence fee to those wanting to perform the song publically. How can this be so, you might ask? Well, Warner/Chappell says it acquired the copyright in the song as part of a $25 million acquisition in 1988. This claim has allowed it to earn millions of dollars each year in royalty payments as a result.

However, their claim is finally being challenged in the US courts.

A film maker making a documentary about the song (I can imagine a lot of birthday parties being involved) was asked to pay Warner/Chappell a $1500 fee for using the song. Failure to do so would have led to a claim for copyright infringement. Believing that the song, the origins of which are over 100 years old, should be in the public domain, the film maker Jennifer Nelson took the brave decision to challenge Warner/Chappell rights.

The case, which is nearing its conclusion has not been kind to Warner/Chappell. Initially the legal debate centred around whether title had been passed correctly to Warner/Chappel but midway through case, its lawyers were forced to disclose a document it had previously ‘forgotten’ to disclose which appears to shoot a huge hole through its rights. The document, a songbook dating from 1927 (see extract below courtesy of TechDirt) shows the lyrics, melody and also a “special permission” notice that appears instead of the (c) notice that would be required to preserve the copyright:

This extract indicates that the original 1922 copyright in the song had already expired by 1927, which would mean that Warner/Chappells has no rights in the song.

This smoking gun has been put before the Judge who is considering whether to throw out Warner/Chappells defence. If it chooses to do so its gravy train is over and you can expect to hear the familiar song ring out in public ad nauseam.

Such a ruling would be welcome, but it does raise the serious question of whether it is right that a song which is almost 100 years old can be protected by copyright. Copyright Law is, in theory, about incentivising creativity but this case shines a light on how it can have the completely opposite effect.