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Filmmaker picks a fight with a corporate giant and sets 'Happy Birthday' free

When Jennifer Nelson set out a few years ago to make a film about one of the most famous songs in history, she knew one thing for sure: She would have to pay if she wanted to use the song itself.

As a freelance film and TV producer, Nelson had seen firsthand the costs of using “Happy Birthday To You,” a tune so ingrained in the public consciousness – and the American songbook – that many had assumed it was free to use.

While working on MTV’s “Super Sweet Sixteen,” a show about extravagant teen birthday bashes, she recalled having to pay up every time the song was sung. “It was something we avoided or worked around in the film business,” she said.

But as Nelson began researching her documentary on the song, she came across a research paper that claimed Warner Music, which had collected millions of dollars in fees over the years, may not have ever had the right to charge for it.

On Tuesday, a federal judge in Los Angeles agreed, handing a victory to Nelson and the assorted group of filmmakers and artists who had sued Warner, claiming the song belonged in the public domain.

A spokesman for Warner’s publishing arm said the company is looking at the court’s opinion and “considering our options.” One of Nelson’s attorneys said the plaintiffs plan to pursue Warner for royalties it has collected -- about $2 million annually since acquiring the rights in 1988, according to some estimates.

Nelson says she didn’t set out to take on one of the largest entertainment companies over one of the most-sung songs in the world.

“I’m not an activist. I’ve never been in a lawsuit,” she said. “It was very foreign territory for me to … enter this David and Goliath type situation where I’m taking on this huge corporation.”

A few years ago, burned out working as a freelancer in television, the San Francisco native began to search for topics for her first solo documentary film. She decided to look into the history of the “Happy Birthday” song.

“It’s the most famous song in the world, and yet nobody knows who wrote it, where it comes from and why it’s so important to our culture and our lives,” Nelson told the Los Angeles Times on Wednesday. “Add to that the fact that somebody owns it, and it’s under copyright. I just thought it was an interesting, weird twist in the story.”

While doing research for the film, Nelson stumbled upon a paper by Robert Brauneis, a copyright law professor at George Washington University who had studied the song’s history extensively. Brauneis pointed out weaknesses in Warner’s claim, saying that the original 1935 copyright may not have even been filed under the rightful owner’s name.

Nelson was stunned. “I mean, they’re charging filmmakers like myself who are cobbling together tiny budgets and they’re charging thousands of dollars for a song that they don’t even own?” she said. “There was really no turning back at that point.”

She took her questions to Randall Newman, a Manhattan-based attorney she’d met through friends. Although Newman also was an accountant, he was not a copyright expert.

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When Nelson first told him about the licensing fees for the “Happy Birthday” song, he didn’t believe her.

“I said, ‘You’re crazy.’ She said, ‘No, it’s true.’ I mean, it’s like ‘Twinkle, Twinkle Little Star’ or ‘Mary Had a Little Lamb,’ you’d never think any of them are under copyright,” Newman said. “And really none of them are. Except for ‘Happy Birthday.’”

The pair went to work on the case.

Newman quickly got a crash course in the history of copyright law – and the complex saga that had surrounded the famous ditty for more than 120 years.

The story began in 1893, with a Kentucky schoolteacher and her older sister. Patty Smith Hill and Mildred J. Hill wrote the song for Patty’s kindergarten students, titling it “Good Morning To All.” The original lyrics Patty wrote were: “Good morning to you / Good morning to you / Good morning, dear children / Good morning to all."

The sisters published the song in a book called “Song Stories for the Kindergarten,” and assigned the copyright to their publisher, Clayton F. Summy Co., in exchange for a cut of the sales.

Somewhere down the line, the lyrics to the “Happy Birthday” song were added to the melody.

In 1935, Summy Co. claimed rights to the birthday version of the song for the first time. Warner started collecting royalties after it bought Birch Tree Group, the successor to Clayton F. Summy Co.

Newman soon brought in another attorney, Mark C. Rifkin, a specialist in class action lawsuits, and they filed suit in 2013. Nelson and her attorneys found themselves mired in a mystery, with disparate clues in the yellowed pages of decades-old books, diaries and letters.

With the professor’s paper as a guide, the lawyers scoured digital archives of old newspapers and magazines, where obscure references to the Hill sisters and Summy turned up several old lawsuits. The legal papers offered a glimpse into the intentions of the authors, who had been dead for nearly a century.

“I read – you have no idea – hundreds and hundreds of articles and books, trying to connect some dots,” Newman said. At one point he became obsessed with trying to place Patty Smith Hill and another teacher who had once been credited for authoring the song at the same teacher’s conference some time in the early 1900s. If he could put them in the same place, he thought, he might be able to argue that someone besides the Hill sisters had written the lyrics, and therefore Summy had not been given the rights from any legal owner of the song. (He never made the connection).

They continued to chase the tune and lyrics through forgotten songbooks, records of the British copyright office and long-settled lawsuits.

The furious search led Nelson and her attorneys to the rare books archive of Columbia University, where they examined a song book from 1899, and to the bowels of the Filson Historical Society in Louisville, Ky., the sisters’ hometown.

There, they pored over the sisters’ trove of papers – hundreds of yellowing, neatly kept papers, sheet music, scribblings and lyrics – but found little that might help. Sifting through their weathered, pencil-written letters, Nelson said, “I felt really connected to the Hill sisters.… It made me think, what would they want? What were they trying to do and what would they want for this song?”

Their next stop was the New York offices of the Assn. for Childhood Education International, a charity the Hill family chose to receive a large cut of the fees from licensing the song. Newman had hoped to find a contract that outlined exactly which rights the Hill sisters granted Summy in exchange for royalties. About 30 banker’s boxes full of quarterly statements and payment records from Summy Co. to the Hill sisters awaited them, but no royalty contract.

“It was an insane amount of detail, just going through the hundreds and hundreds of pages, looking for one simple clue. That’s the legal journey we were on,” Nelson said.

Still, Newman said, they knew they were on the right track when they were told Warner’s attorneys had been to both places just before them.

At trial, both sides were forced to rely on antiquated and incomplete records, hoping the lengthy paper trail could speak for itself.

“There were no witnesses,” Newman said. “Everybody’s dead.”

At various turns during the case, attorneys argued over whether the Hill sisters had actually written the song, whether they had "abandoned" their rights to what became the "Happy Birthday" tune, and even whether Patty Smith Hill had been accurately quoted in a 1935 Time magazine article about the song.

For months, Newman and Rifkin argued that the Hill sisters allowed the public to perform the song without asserting any copyright, allowing it to drift into the public domain as early as the 1920s.

Then, two months ago, the lawyers discovered what they called a “smoking gun” proving “Happy Birthday To You” has been in the public domain for decades: a 1922 songbook that Newman ordered from Amazon for $3. Music that was published before 1923 is generally considered to be in the public domain, and the songbook printed the tune and its lyrics with the message: "Special permission through courtesy of the Clayton F. Summy Co.," without any copyright notice.

The judge essentially ignored the plaintiffs’ so-called smoking gun in his ruling Tuesday, saying that there was no evidence Summy Co. ever had a valid copyright for the song as a whole in the first place.

The song is now effectively free for everyone, and the judge’s ruling was widely and swiftly praised.

On Twitter, Jack Lerner, a professor at UC Irvine’s law school, called it “a great victory for the public.” Added Sandra Leviton, a producer and writer: “This is amazing news for all writers, producers and directors!” And actor John Pyper-Ferguson said simply, “FREE at last!”

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