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Will 'Happy Birthday' song be free to use soon? A judge is deciding

Will 'Happy Birthday' song be free to use soon? A judge is deciding
A 1922 copy of "The Everyday Song Book," containing lyrics to "Happy Birthday" is part of litigation to free the often used song from copyright claims because it was published in 1922 -- sans copyright notice -- before it was registered with the copyright office in 1935. (Christine Mai-Duc / Los Angeles Times)

One of the most familiar songs to all Americans could soon be free to use if a federal judge rules against Warner Music Group's decades-old grip on the rights to "Happy Birthday to You."

Judge George H. King heard arguments Wednesday morning in a case that pits the publishing arm of Warner Music Group against New York-based Good Morning to You Productions, which is making a documentary about the 1893 ditty.

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The question comes down to whether Warner Music Group can continue charging for the use of the song or if it is in the public domain and free for all to use.

King said at the start that he would not immediately rule on a plaintiff's motion asking him to declare that the song is in the public domain and no longer subject to licensing fees. He's giving the plaintiffs seven days to respond to Warner Music's Tuesday filing.

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FOR THE RECORD

July 29, 2:23 p.m.: An earlier version of this post said Judge George H. King is giving Warner Music seven days to respond. He is giving the plaintiffs seven days to respond.

July 29, 6:36 p.m.: An earlier version of this post said attorney Mark Rifkin said the 1922 "Everyday Song Book" was the first published version of the birthday lyrics. He said it was the first authorized published version.

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After Warner asked the documentary makers to pay $1,500 to use the song, Good Morning to You filed a class-action suit in 2013, arguing the song was in the public domain.

The ubiquitous song, sung at countless birthday celebrations over the last 120 years, started out as "Good Morning to All." Sisters Mildred J. Hill and Patty Smith Hill wrote the song for kindergarten students. Its original lyrics were: "Good morning to you / Good morning to you / Good morning, dear children / Good morning to all."

That song evolved into "Happy Birthday to You."

Warner has pressed its copyright claim since 1988, when it paid $15 million to buy the Birch Tree Group, the successor to the Clayton F. Summy Co. that previously held the rights.

As it stands, Warner can charge anyone who wants to sing or play "Happy Birthday to You" as part of a profit-making enterprise. This most often occurs with stage productions, on TV, in movies, in ringtones or in greeting cards. But even those who want to sing it publicly as part of a business, such as restaurant owners giving out free birthday cake, technically have to pay for permission to use the song.

That has led to some interesting workarounds over the years, as seen in this compilation video.

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The plaintiffs argued in a court filing this week that the copyright for the song expired when both versions of the song were published in the 1922 "Everyday Song Book."

Mark Rifkin, a partner with Wolf Haldenstein Adler Freeman & Herz, the law firm representing the plaintiffs, says the book was the first authorized published version of the birthday lyrics. The firm submitted copies of the songbook as exhibits this week.

Warner attorneys disagree. They argued in an eight-page court document filed Tuesday that Jessica Hill, who had inherited part of Mildred Hill's rights to the song, renewed the copyright to "Good Morning" in 1921, and that the "Happy Birthday to You" song was copyrighted by Summy with authorization from the family in 1935. Summy renewed the copyright in 1962, decades before Warner Music bought Summy's successor company.

The Good Morning group insists the 1935 copyright applies only to new piano arrangements written by Summy's company, not to the lyrics of the song.

Patty Smith Hill "was protective of the work she did with her sister… but the work she later composed, 'Happy Birthday to You,' she was happy to have everybody enjoy it," Rifkin said.

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