Unlike patents, independent creation is allowed for copyrighted materials.
Even if someone else had coincidentally come up with the same lyrics in 1922 (it's not that complicated a song) but didn't copyright it, it wouldn't help. About the only defense would be that the publication was unauthorized - that the Hills had shown the song to the publisher of The Everyday Song Book but didn't reach a deal, didn't publish it for thirteen years, then copyrighted it in 1935. Finding it published in 1922 leaves few ways the claimed 1935 copyright could be valid. Plus, when it comes to lawsuits over old intellectual properties, American judges look at what the law used to be during the time period in question, rather than what it is now.įurthermore, only works published in 1923 or later were still potentially note if renewed before expiration under copyright at the time. That loophole and several others were closed in the 1976 Copyright Act, but the law isn't retroactive (as that would make it an ex post facto law - i.e., a law potentially criminalising conduct that was legal before the law's passage, such as making copies of and/or distributing the "Happy Birthday" lyrics or prints of Night of the Living Dead - which are specifically prohibited by the United States Constitution). note Night of the Living Dead (1968) had a similar issue it was distributed to cinemas without a copyright notice, thus accidentally and automatically releasing it (and by extension pretty much all of the core zombie/undead mythos) into the public domain. That book contained the lyrics to "Happy Birthday" with a disclaimer that they had been used with "special permission through courtesy of the Clayton F Summy Co." note (that's the company whose IP Warner Music Group ended up with in 1988) but that's not a valid copyright notice, which was required at the time of publishing. During pretrial hearings in 2015 one day before a scheduled ruling, in fact Nelson and her lawyers discovered evidence that WMG's copyright claim was likely invalid thanks to the discovery of documents " mistakenly held from them" by WMG, including a book published in 1922 titled The Everyday Song Book. To secure the rights to the song and ensure the documentary would be made, Nelson had to pay $1500, which she claimed was unreasonable. In 2013, a lawsuit was filed against Warner/Chappell Music by Jennifer Nelson, whose production company, Good Morning to You Productions, was filming a documentary about the song and its history. "Happy Birthday", however, had a loophole in that a separate copyright claim was filed in 1935, and Patty Hill (the last living original rightsholder) died in 1946. United States copyright law states that almost everything published before 1925 is in the public domain by default. note This makes very little sense because the first publication of the lyrics was around 1911. This case of copyright laws run amok was often subject to Lampshade Hanging, which was really all anyone could do, as WMG was expected to hold the rights to the lyrics until 2031 at the earliest. note However, given that only the lyrics were under copyright, another Klingon phrase set to the same tune would be fair game. Even foreign language translations were not exempt - Star Trek writers found out that even showing it in Klingon would cost them. The fact that you could've been sued for realistically portraying an Anglophone birthday party is mind-boggling. This little ditty - based on another melody, sung thousands of times a day around the world, and only containing six words - was subject to legal scrutiny for decades. This is all in stark contrast to the real world, where singing anything other than "Happy Birthday To You" is almost unheard of except when the singers were the waitstaff of certain chain restaurants, for exactly the same reason as media.
The copyright specifically applied to the combination of the lyrics and the melody speaking or printing out the lyrics was fine, and so was using the melody if it had different lyrics or was instrumental. To avoid fees and/or lawsuits, productions typically either substituted a public domain folk song - "For He's a Jolly Good Fellow" is one example (British shows may use "A Fine Old English Gentleman" instead) - or they just made up their own lyrics, which may or may not use the actual melody.