Law professor finds key to unlocking rights to 'Happy Birthday'

by Regina Park | Hatchet Reporter

Media Credit: Craig Hudson | Hatchet Photographer
Robert Brauneis, co-director of the GW Law School's intellectual property and technology law program, wrote a paper on the copyright of "Happy Birthday" that helped a judge rule on a copyright case last week.

For one law professor, the “Happy Birthday” song has more to do with research papers than cake and candles.

Last week, a U.S. District Court for the Central District of California ruled that Warner/Chappell Music no longer owned their rights to the “Happy Birthday” song. Those involved in the case credited Robert Brauneis, co-director of GW Law School's intellectual property law program, who wrote a paper in 2010 about the copyright of the song that helped to win the ruling.

The lawsuit, which was filed in 2013 by documentary filmmaker Jennifer Nelson, asserted that “Happy Birthday” belonged in the public domain. Nelson said she discovered that a publishing arm of the Warner Music Group collected nearly $2 million in licensing fees per year for use of the song in films and other media.

When Nelson wanted to use “Happy Birthday” in a film about the song’s history, she found Brauneis’ 68-page-long paper, called "Copyright and the World's Most Popular Song." In the paper, Brauneis outlines the complex history of “Happy Birthday” and follows a nearly century-long trail back to the original owner of the song.

“I’ve been consulting with them as the lawsuit has progressed. Not as a paid consultant, just as a friend," Brauneis said in an interview. "I think it’s fair to say that the article inspired the lawsuit.”

Alumni of GW's intellectual property and technology law program, which Brauneis helps lead, have written patents for inventions like Alexander Bell’s telephone and the roll film camera.

Brauneis said he first became interested in copyright law with the rapid rise of the Internet in the 1990s. He said that prior to widespread Internet use, intellectual property questions were generally limited to businesses.

But with the launch of the Internet, individuals were able to easier access music, books, articles, movies and even ideas, opening them up to copyright infringement, he said.

“The rise of the Internet made copyright laws relevant to individuals, even in a private capacity. Suddenly, it became a part of all of our daily lives and that was really interesting to me,” he said.

After graduating magna cum laude from Harvard Law School, Brauneis served as a law clerk under Supreme Court Justice Stephen Breyer, who at the time was a judge in the U.S. Court of Appeals for the First Circuit.

Brauneis said his interest in the “Happy Birthday” song started approximately that time, and seven years later, he wrote the paper that would help build the case.

“I went to a number of archives and found a lot of information that I thought hadn’t been published before, about the history of the song and about the history of the two sisters who composed at least the predecessor to 'Happy Birthday to You,' a song called 'Good Morning to All,'” he said.

Breyer cited “Happy Birthday” as an example of how long copyright licenses lasted for the 2003 Supreme Court case Eldred v. Ashcroft, a significant copyright ruling which upheld existing copyright laws at the time.

But Brauneis added that while the judge last week ruled that “Happy Birthday” was not owned by the Warner Music Group, use of the song still falls in a legal gray area.

“Some of the media reporting have gone a little overboard and said that, ‘The judge ruled the song is no longer under copyright.' That’s not what the judge ruled,” said Brauneis. “All we know is that, according to the judge, the Warner/Chappell music company that’s been collecting money from this song doesn’t own it.”

Brauneis also said that the unclear nature of who owns the rights to “Happy Birthday” still makes the song risky to use in films. But as for waiters in restaurants or Girl Scouts sitting around a campfire, singing the birthday song is perfectly legal.

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