Moving from the celebratory to the spiritual, the lawyers who (literally) brought you “Happy Birthday” once again find themselves looking to overcome entrenched copyright interests related to one of the country’s most well-known anthems.  Attorneys Mark C. Rifkin and Randall Scott Newman, who recently succeeded in bringing “Happy Birthday” into the public domain, are aiming for a follow-up hit, filing suit against The Richmond Organization (TRO) and Ludlow Music over the copyright to the Civil Rights anthem “We Shall Overcome.”

TRO has held copyrights for “We Shall Overcome” since the early 1960s and has collected millions of dollars in fees for its use since then.  “We Shall Overcome” was popularized by folk singer Pete Seeger in the late 1940s and returned to prominence during the Civil Rights Movement in the 1960s.

Seeger Did Not Write “Overcome”

Rifkin and Newman, as they did in the “Happy Birthday” case, assert on plaintiffs’ behalf that the song is derived from works pre-dating the copyrighted versions.  “We Shall Overcome,” they say, is virtually identical in its musical and lyrical composition to “We Will Overcome,” which Mr. Seeger published and copyrighted in 1948.  Thus, say Rifkin and Newman, “[b]ecause the copyright to the 1948 publication of People’s Songs, Reg. No. B184728, was never renewed and thus expired  in September 1976, … We Shall Overcome entered the public domain no later than that date.”

Origins of the Song Date Back to Early 1900s

The attorneys actually believe that the song entered the public domain far earlier.  Indeed, “We Will Overcome” is a turn-of-the-20th-Century African-American spiritual that Mr. Seeger freely admits learning from a friend.  According to a Library of Congress blog post from 2014, the song appears to have roots in two different songs from that period, one from which its lyrics are derived, and the other from which it draws its melody.  The individual(s) who combined the two, however, is not currently known.

Only time will tell whether Rifkin and Newman turn out to be one hit wonders, or whether they can “Overcome” once again.  If only there were a song they could use to motivate themselves…

[This post was written by Jason Horst.]

You know those cheesy variations on the “Happy Birthday” song performed by a half-dozen waiters and waitresses that your friends make you suffer through on your birthday? You notice that for all of the birthday parties you have watched on TV and in the movies, you rarely see a family singing “Happy Birthday” to their loved ones as they turn one year older?  All of that is about to change… maybe.

Parties recently settled an action related to the copyright on “Happy Birthday.” Terms of the settlement have yet to be disclosed, but they are not expected to undo a federal judge’s recent ruling in the case that the copyright, under which Warner/Chappelle Music and its predecessors have collected licensing fees for more than six decades, is invalid. So, it appears that “Happy Birthday” now officially belongs to all of us.

The Lawsuit

As discussed in a previous post, Plaintiffs brought suit claiming that the song is in the public domain because Warner/Chappelle had no valid copyright to the “Happy Birthday” lyrics. In September, a federal judge agreed with Plaintiffs and granted summary judgment that Warner/Chappelle Music “do not own a valid copyright in the Happy Birthday lyrics.” Warner/Chappelle announced that it would seek reconsideration of the court’s order or leave to immediately appeal the ruling.

Added Complications

Shortly after this ruling, plaintiffs sought to expand the class to include anyone from whom Warner/Chappelle had collected licensing fees dating back to 1949. This move created the prospect of substantial damages to be awarded against Warner/Chappelle. Then, last month, the charity organization Association for Childhood Education International, made a competing claim to the rights to use of the song as the heir of others to whom its authorship is attributed.

The Settlement

Rather than fighting this battle in Court, the parties have settled their matter. The financial terms have not been disclosed to the public. The settlement, however, appears to leave in tact the judge’s ruling invalidating the copyright and placing “Happy Birthday” in the public domain.  So, while being serenaded by waiters in front of a restaurant full of people will still be embarrassing, at least the song they are singing will be familiar.

Some years ago, Aaron Sorkin (bar none the greatest television writer of all time) spent a few minutes of an episode of Sports Night making light of the fact that the song “Happy Birthday” is outside the public domain. Onscreen, his characters quipped:

Dan: I’ve got the intellectual property cops crawling up my butt.

Isaac: The intellectual property cops?

Dan: I sang happy birthday to Casey on air.

Isaac: When?

Dan: Well, on his birthday, Isaac…

Isaac: Someone holds the copyright to “Happy Birthday”?

Dan: The representatives of Patty and Mildred Hill.

Isaac: Took two people to write that song?

In fact, it apparently took four people to write that song. While the Hill sisters are credited with writing the melody to “Happy Birthday,” two different authors, Preston Ware Orem and Mrs. R.R. Forman, were credited when a copyright on the song was first registered in 1935. Now, however, a group of plaintiffs is citing the fact that the song was published in 1922 sans copyright in arguing that the song is in the public domain.

Big Dollars at Stake

Warner Music Group currently owns the copyright to “Happy Birthday,” having purchased the company that registered the copyright in 1988. At the time, the “Happy Birthday” copyright alone was valued at $5 million. That figure would certainly be higher today, so Warner has a great deal at stake in this litigation.

We Could Be Singing Any Day Now

We may not have to wait long to learn the fate of “Happy Birthday.” Cross-motions for summary judgment are now pending before the District Court, which could rule on the motions with or without further hearings. While you wait, enjoy more fun banter from Sorkin on the topic: