One of the reasons you never hear the Happy Birthday song at your favorite chain restaurant is due to fear of copyright infringement from performing the song which was written in 1893. Well fear no more. In September 2015, a federal judge in California has ruled that the alleged owner of the copyright in the song (Warner/Chappell) never had the right to charge for use of the song by third parties. The copyright the company relied on was for a specific piano arrangement of the song—not the original song itself.
Originally, the song was entitled “Good Morning to All” and was written by a Kentucky school teacher and her sister. The song gained widespread popularity and eventually became known as the Happy Birthday song when new lyrics were ascribed to it. As recently as this year, companies were paying many thousands of dollars for rights to perform the song. There was no question that the song itself had gone into the public domain—the issue was the Happy Birthday lyrics. Judge George H. King ruled that the sisters who wrote the song never made a copyright claim to the Happy Birthday lyrics. So it is unclear at best who owned the rights to such lyrics and determining that now would be an almost impossible task.
So now you may hear the familiar Happy Birthday tune and lyrics out in public on a much more regular basis. The lyrics have not been formally placed in the public domain, but based on this recent ruling, it is unlikely that there will be any more royalties paid to Warner/Chappell—a company that has received millions of dollars in royalties over the years.
Many artists and creative product producers are aware that ownership of a copyright occurs automatically when an author of an original work places that work into a tangible medium of expression. Because this happens automatically, many feel that taking the extra step of registering their copyright with the U.S. Copyright Office is an unnecessary extra step. Regarding ownership, this is true. There is no need for an author of an original work to register the work in order to own the copyright in the work.
The issue changes, however, when an author desires to enforce his or her rights against a third party. In order to properly file a lawsuit to enforce a copyright, the filer must have at least first filed to register the work with the U.S. Copyright Office. Some federal jurisdictions even require that the work be registered before suit can properly be filed.
Perhaps the most important reason to register a copyright in a work is to be able to benefit from the statutory damages provisions of the U.S. Copyright Act. If a work is properly registered before infringing acts occur, the owner of a work can elect statutory damages instead of having to prove actual damages. This can save a tremendous amount of money in litigation. Statutory damages can range as high as $150,000 per registered work if the infringement is shown to be intentional.
It is tempting to think, “I’ll register my work if and when someone infringes it.” But this plan won’t afford you the benefit of statutory damages. In order to be able to benefit from the option of statutory damages, a work must be registered before infringing acts occur, or at least before knowledge of those acts occurs. So the idea of waiting won’t work. The drafters of the statute purposefully included this caveat to attempt to encourage authors to go ahead and register their original works of authorship. So, do you really need to register your copyright? If you want to benefit from the statutory damages provisions of the U.S. Copyright Statute, the answer is “yes”.