Rupa Marya leads the band Rupa and the April Fishes, and back in 2013, they recorded a live concert in San Francisco, on the eve of Marya’s birthday.
“And at midnight,” Marya recalls, “the band and audience started singing happy birthday. And it was so touching for me, especially as I was pregnant.”
So touching, Marya decided to include the song on the album, Live at the Independent.
She was surprised later when her attorney, Daniel Schacht, told her that if she wanted to include the song, she’d have to pay $455 in royalties to Warner/Chappell, which is a lot for a recording project with a budget of just $12,000. Marya also thought it was ridiculous that a corporation could claim to own “Happy Birthday to You,” a song every child learns to associate with birthday cake at the age of one.
“Because it’s a song that’s sung all over the world, and it belongs to everybody,” Marya said.
Everybody may sing it, but, at least for now, it belongs to Warner/Chappell.
Two sisters, Patty and Mildred Hill, wrote “Happy Birthday to You” in 1893. Patty was a kindergarten teacher and the song began as a good morning tune for the kids and teacher to sing to each other, with the birthday lyrics added as an optional third verse.
Warner/Chappell Music acquired the rights to the song in 1988, and still collects about $2 million-a-year in royalties for its use in movies, on television and recordings like the one by Rupa and the April Fishes.
So Marya joined LA based documentary maker Jennifer Nelson in challenging Warner/Chappell’s copyright in federal court. Nelson says she paid Warner/Chappell $1,500 to use “Happy Birthday to You” in her movie about the song.
For Marya, the fight was not over money, but principle.
“I’m a big fan of copyright law. Of copyrights protecting the work of artists so we can support our livelihood and make our work,” Marya said. “I’m not a fan of copyright law being used to make millions for corporations.”
And then attorneys for the plaintiffs found new evidence.
“It’s rare to have a Perry Mason moment in a case,” said Marya’s attorney Schacht, referring to the fictional defense attorney who often elicited confessions on the witness stand.
The evidence, what Schacht called “the smoking gun,” was a songbook from 1922, containing music and lyrics for “Happy Birthday to You.” The publication appears to have been authorized by the Hill sisters’ publisher, but without a copyright notice.
“If it was done without a copyright notice,” Schacht said, “it falls immediately into the public domain.”
Warner/Chappell did not return emails requesting a comment on the case, but they’ve argued in court documents that the sisters never authorized the 1922 songbook, and the copyright still stands.
Both sides have asked a judge for summary judgement in the case, and that could come at any time. A ruling against Warner/Chappell could mean the company would have to pay back decades worth of royalties worth tens of millions of dollars.