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Originally published Thursday, June 13, 2013 at 8:44 PM

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Filmmaker makes federal case out of ‘Happy Birthday’ song rights

The filmmaker behind a new documentary about the song “Happy Birthday to You” has gone to federal court to challenge the copyright to the famous jingle.

The New York Times

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The song “Happy Birthday to You” is widely credited for being the most performed song in the world. But one of its latest venues may be the federal courthouse in Manhattan, where the only parties may be the litigants to a new legal battle.

The dispute stems from a lawsuit filed Thursday by a filmmaker in New York who is seeking to have the court declare the popular ditty to be in the public domain, and to block a music company from claiming it owns the copyright to the song and charging licensing fees for its use.

The filmmaker, Jennifer Nelson, was producing a documentary, tentatively titled “Happy Birthday,” about the song, the lawsuit said. In one proposed scene, the song was to be performed.

But to use it in the film, she was told she would have to pay $1,500 and enter into a licensing agreement with Warner/Chappell, the publishing arm of the Warner Music Group. Nelson’s company, Good Morning to You Productions, paid the fee and entered into the agreement, the suit says.

“Before I began my filmmaking career,” Nelson said in an email forwarded by her lawyer, “I never thought the song was owned by anyone. I thought it belonged to everyone.”

The lawsuit notes that in the late 1800s, sisters Mildred Hill and Patty Smith Hill wrote a song with the same melody called “Good Morning to All.” The suit tracks that song’s evolution into the familiar birthday song, and its ownership over more than a century.

But although Warner/Chappell claims ownership of “Happy Birthday to You,” the song was “just a public adaptation” of the original song, one of Nelson’s lawyers, Mark Rifkin, said in a phone interview.

“It’s a song created by the public, it belongs to the public, and it needs to go back to the public,” Rifkin said.

A spokesman for Warner/Chappell declined to comment on the suit. The company paid $25 million in 1988 to acquire Birchtree, a small company whose musical holdings included the birthday song.

Rifkin cited an estimate that Warner/Chappell collected approximately $2 million a year in licensing fees for the song. He added that the suit asks that the firm return all the fees for the song it has collected in the past four years.

The history of the song’s evolution and the conclusion that it might be in the public domain closely track the findings of Robert Brauneis, a professor at the George Washington University Law School and the author of a 68-page article, “Copyright and the World’s Most Popular Song.”

In the study, Brauneis said that “it is doubtful that ‘Happy Birthday to You,’ the famous offspring of ‘Good Morning to All,’ is really still under copyright.”

“I believe this song is in the public domain and therefore it is not owned by anyone,” Brauneis said in a phone interview Thursday. He said “Happy Birthday to You” was “economically significant” in that it “still produces millions of dollars of income in a year,” and that a successful legal challenge “might be a model for challenges to other songs.”

He said he was not a consultant in the lawsuit.

Nelson is not the first documentarian to confront the issue of paying to use the song. Filmmaker Steve James paid $5,000 to use it in the acclaimed 1994 documentary “Hoop Dreams,” in which it is sung at a man’s 18th birthday party.

“It was an important scene,” James said in a 2005 article in The New York Times, “there was some amazement that Arthur had made it to 18. Of course, we wanted that in.”

Nelson, asked what she envisioned for her documentary, responded in the email that her film would be about the “song’s history and its future.” The suit seeks class-action status on behalf of all others who have paid fees for the song since 2009.

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