Rupa Marya v. Warner Chappell Music Inc

Filing 1

CLASS ACTION COMPLAINT against Defendant Warner Chappell Music Inc.Case assigned to Judge Ronald S.W. Lew for all further proceedings. Discovery referred to Magistrate Judge Frederick F. Mumm.(Filing fee $ 400:PAID) Jury Demanded., filed by plaintiff Rupa Marya.(ghap) (jp).

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Plaintiff Rupa Marya d/b/a/ Rupa Marya & The April Fishes (“Marya”), on

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behalf of herself and all others similarly situated, by her undersigned attorneys, as

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and for her Class Action Complaint against defendant Warner/Chappell Music, Inc.

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(“Warner/Chappell”), alleges as follows:
JURISDICTION AND VENUE

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1.

The Court has subject-matter jurisdiction over this action pursuant to

28 U.S.C. § 1331 and 28 U.S.C. § 1338 with respect to claims seeking declaratory
and other relief arising under the Copyright Act, 17 U.S.C. §§ 101 et seq.; pursuant
to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.; pursuant to the Class
Action Fairness Act, 28 U.S.C. § 1332(d)(2); and supplemental jurisdiction pursuant
to 28 U.S.C. § 1367 over the entire case or controversy.
2.

The Court has personal jurisdiction and venue is proper in this District

under 28 U.S.C. §§ 1391(b)-(c) and 28 U.S.C. § 1400(a), in that the claims arise in
this Judicial District where defendant Warner/Chappell’s principal place of business
is located and where Warner/Chappell regularly conducts business and may be
found.
INTRODUCTION
3.

This is an action to declare invalid the copyright that defendant

Warner/Chappell claims to own to the world’s most popular song, Happy Birthday
to You (the “Song”), to declare that Happy Birthday to You is dedicated to public use
and in the public domain; and to return millions of dollars of unlawful licensing fees
collected by defendant Warner/Chappell pursuant to its wrongful assertion of
copyright ownership of the Song.
4.

According to the United States Copyright Office (“Copyright Office”),

a “musical composition consists of music, including any accompanying words, and
is normally registered as a work of the performing arts.” Copyright Office Circular
56A, “Copyright Registration of Musical Compositions and Sound Recordings,” at 1
(Feb. 2012) (available at www.copyright.gov/circs/circ.56a.pdf). The author of a
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musical composition generally is the composer, and the lyricist (if a different

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person). Id.

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5.

More than 120 years after the melody to which the simple lyrics of

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Happy Birthday to You is set was first published, defendant Warner/Chappell

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boldly, but wrongfully and unlawfully, insists that it owns the copyright to Happy

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Birthday to You, and with that copyright the exclusive right to authorize the song’s

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reproduction, distribution, and public performances pursuant to federal copyright

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law. Defendant Warner/Chappell either has silenced those wishing to record or

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perform Happy Birthday to You, or has extracted millions of dollars in unlawful

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licensing fees from those unwilling or unable to challenge its ownership claims.
6.

Irrefutable documentary evidence, some dating back to 1893, shows

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that the copyright to Happy Birthday to You, if there ever was a valid copyright to

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any part of the song, expired no later than 1921 and that if defendant

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Warner/Chappell owns any rights to Happy Birthday to You, those rights are limited

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to the extremely narrow right to reproduce and distribute specific piano

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arrangements for the song published in 1935. Significantly, no court has ever

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adjudicated the validity or scope of the defendant' claimed interest in Happy
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Birthday to You, nor in the song' melody or lyrics, which are themselves
s

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independent works.

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7.

Plaintiff Marya, on behalf of herself and all others similarly situated,

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seeks a declaration that Happy Birthday to You is dedicated to public use and is in

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the public domain as well as monetary damages and restitution of all the unlawful

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licensing fees that defendant Warner/Chappell improperly collected from Marya and

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all other Class members.
PARTIES

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8.

Plaintiff Marya is a musician and leader of the band entitled “Rupa &

The April Fishes” (“RTAF”), and a member of the American Society of Composers,
Authors and Publishers (“ASCAP”). Plaintiff Marya is a resident of San Mateo
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County, California. RTAF recorded Happy Birthday to You at a live show in San

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Francisco, California, on April 27, 2013. Under a claim of copyright by defendant

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Warner/Chappell, on or about June 17, 2013, Plaintiff Marya d/b/a RTAF paid to

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defendant Warner/Chappell the sum of $455 for a compulsory license pursuant to 17

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U.S.C. § 115 (commonly known as a “mechanical license”) to use Happy Birthday

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to You, as alleged more fully herein.

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Defendant Warner/Chappell is a Delaware corporation with its

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principal place of business located at 10585 Santa Monica Boulevard, Los Angeles,

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California 90025. Warner/Chappell regularly conducts business within this Judicial

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District, where it may be found.
FACTUAL BACKGROUND

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Good Morning to All and the Popular Adoption of Happy Birthday to You
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Sometime prior to 1893, Mildred J. Hill (“Mildred Hill”) and her sister

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Patty Smith Hill (“Patty Hill”) (Mildred and Patty Hill are collectively referred to as

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the “Hill Sisters”) authored a written manuscript containing sheet music for 73

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songs composed or arranged by Mildred Hill, with words written and adapted by

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Patty Hill.

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The manuscript included Good Morning to All, a song written by the

Hill Sisters.
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On or about February 1, 1893, the Hill Sisters sold and assigned all

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their right, title, and interest in the written manuscript to Clayton F. Summy

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(“Summy”) in exchange for 10 percent of retail sales of the manuscript. The sale

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included the song Good Morning to All.

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13.

In or around 1893, Summy published the Hill Sisters’ written

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manuscript with an introduction by Anna E. Bryan (“Bryan”) in a songbook titled

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Song Stories for the Kindergarten. Song Stories for the Kindergarten included the

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song Good Morning to All.

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14.

On or about October 16, 1893, Summy filed a copyright application

(Reg. No. 45997) with the Copyright Office for Song Stories for the Kindergarten.
15.

On the October 16, 1893, copyright application, Summy claimed to be

the copyright’s proprietor, but not the author of the copyrighted works.
16.

Song Stories for the Kindergarten bears a copyright notice reading

“Copyright 1893, by Clayton F. Summy.”
17.

As proprietor of the 1893 copyright in Song Stories for the

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Kindergarten, Summy owned the rights to both the songbook as a compilation and

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the individual songs published therein, including Good Morning to All.

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18.

The lyrics to Good Morning to All are:

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Good morning to you

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Good morning to you

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Good morning dear children

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Good morning to all.

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19.

The lyrics to Happy Birthday to You are set to the melody from the

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song Good Morning to All. As nearly everyone knows, the lyrics to Happy Birthday

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to You are:

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Happy Birthday to You

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Happy Birthday to You

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Happy Birthday dear [NAME]

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Happy Birthday to You.

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20.

The lyrics to Happy Birthday to You were not published in Song Stories

for the Kindergarten.
21.

On or about January 14, 1895, Summy incorporated the Clayton F.

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Summy Co. (“Summy Co.”) under the laws of the State of Illinois for a limited term

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of 25 years.

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22.

In 1896, Summy published a new, revised, illustrated, and enlarged

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version of Song Stories for the Kindergarten, which contained eight previously

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unpublished songs written by the Hill Sisters as well as illustrations by Margaret

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Byers.

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23.

On or about June 18, 1896, Summy filed a copyright application (Reg.

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No. 34260) with the Copyright Office for the 1896 publication of Song Stories for

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the Kindergarten.

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On its June 18, 1896, copyright application, Summy again claimed to

be the copyright’s proprietor, but (again) not the author of the copyrighted works.
25.

The 1896 version of Song Stories for the Kindergarten bears a

copyright notice reading “Copyright 1896, by Clayton F. Summy.”
26.

As proprietor of the 1896 copyright in the revised Song Stories for the

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Kindergarten, Summy owned the rights to both the songbook as a compilation and

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the individual songs published therein, including Good Morning to All.

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27.

The lyrics to Happy Birthday to You were not published in the 1896

version of Song Stories for the Kindergarten.
28.

In 1899, Summy Co. published 17 songs from the 1893 version of Song

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Stories for the Kindergarten in a songbook titled Song Stories for the Sunday

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School. One of those songs included in Song Stories for the Sunday School was

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Good Morning to All.

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29.

On or about March 20, 1899, Summy Co. filed a copyright application

(Reg. No. 20441) with the Copyright Office for Song Stories for the Sunday School.
30.

On the 1899 copyright application, Summy Co. claimed to be the

copyright’s proprietor, but not the author of the copyrighted works.

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31.

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This collection of songs has been published in response to earnest

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requests from various sources. They are taken from the book, Song

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Stories for the Kindergarten by the MISSES HILL, and are the

The title page to Song Stories for the Sunday School states:

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copyright property of the publishers. (Emphasis added).

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Song Stories for the Sunday School bears a copyright notice reading

“Copyright 1899 by Clayton F. Summy Co.”
33.

As proprietor of the 1899 copyright in Song Stories for the Sunday

School, Summy Co. owned the rights to both the songbook as a compilation and the
individual songs published therein, including Good Morning to All.
34.

The lyrics to Happy Birthday to You were not published in Song Stories

for the Sunday School.
35.

Even though the lyrics to Happy Birthday to You and the song Happy

Birthday to You had not been fixed in a tangible medium of expression, the public
began singing Happy Birthday to You no later than the early 1900s.
36.

For example, in the January 1901 edition of Inland Educator and

Indiana School Journal, the article entitled “First Grade Opening Exercises”
described children singing the words “happy birthday to you,” but did not print the
song’s lyrics or melody.
37.

In or about February, 1907, Summy Co. republished the song Good

Morning to All as an individual musical composition.
38.

On or about February 7, 1907, Summy Co. filed a copyright application

(Reg. No. 142468) with the Copyright Office for the song Good Morning to All.
39.

The lyrics to Happy Birthday to You do not appear in the 1907

publication of Good Morning to All.
40.

In 1907, Fleming H. Revell Co. (“Revell”) published the book Tell Me

a True Story, arranged by Mary Stewart, which instructed readers to:
Sing: “Good-bye to you, good-bye to you, good-bye dear children,
good-bye to you.” Also: “Good-bye dear teacher.” (From “Song
Stories for the Sunday-School,” published by Summy & Co.)
Sing: “Happy Birthday to You.” (Music same as “Good-bye to

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You.”)

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A239690) with the Copyright Office for Tell Me a True Story.
42.

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of Sunday Schools of the Methodist Episcopal Church (“Board of Sunday Schools”)
in The Elementary Worker and His Work, by Alice Jacobs and Ermina Chester
Lincoln, as follows:
Happy birthday to you, Happy birthday to you, Happy birthday,
dear John, Happy birthday to you. (Sung to the same tune as the

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“Good Morning”) [NOTE: The songs and exercises referred to in

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this program may be found in these books:... “Song Stories for the

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Sunday School,” by Patty Hill.]

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Upon information and belief, the lyrics to Happy Birthday to You

(without the sheet music for the melody) were first published in 1911 by the Board

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Tell Me a True Story did not include the lyrics to Happy Birthday to

You.

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On or about May 18, 1909, Revell filed an application (Reg. No.

44.

On or about January 6, 1912, the Board of Sunday Schools filed a

copyright application (Reg. No. A303752) with the Copyright Office for The
Elementary Worker and His Work.
45.

The Elementary Worker and His Work attributed authorship or

identified the copyrights to many of the works included in the book. Significantly, it
did not attribute authorship or identify any copyright for the song Happy Birthday to
You.
46.

On or about January 14, 1920, Summy Co. was dissolved in accordance

with its limited (not perpetual) 25-year term of incorporation. Summy Co. did not
extend or renew the 1899 (Reg. No. 20441) or 1907 (Reg. No. 142468) copyrights
prior to its dissolution.
47.

Pursuant to Section 24 of the Copyright Act of 1909, the renewal rights

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to the original and revised Song Stories for the Kindergarten were vested solely in

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their proprietor, Summy.

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48.

Pursuant to Section 24 of the Copyright Act of 1909, the renewal rights

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to Song Stories for the Sunday School and Good Morning to All were vested solely

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in their proprietor, Summy Co.

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49.

The copyright to the original Song Stories for the Kindergarten (Reg.

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No. 45997) was not extended by Summy, and consequently expired on October 16,

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1921. Song Stories for the Kindergarten, including the song Good Morning to All,

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became dedicated to public use and fell into the public domain by no later than that

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date.
50.

The copyright to the revised Song Stories for the Kindergarten (Reg.

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No. 34260) was not extended by Summy, and consequently expired on June 18,

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1924. The revised Song Stories for the Kindergarten became dedicated to public

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use and fell into the public domain by no later than that date.

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51.

In or around March 1924, the sheet music (with accompanying lyrics)

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to Happy Birthday to You was in a songbook titled Harvest Hymns, published,

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compiled, and edited by Robert H. Coleman (“Coleman”). Upon information and

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belief, Harvest Hymns was the first time the melody and lyrics of Happy Birthday to

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You were published together.

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52.

Coleman did not claim authorship of the song entitled Good Morning

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to You or the lyrics to Happy Birthday to You. Although Harvest Hymns attributed

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authorship or identified the copyrights to many of the works included in the book, it

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did not attribute authorship or identify any copyright for Good Morning to You or

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Happy Birthday to You.

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53.

On or about March 4, 1924, Coleman filed a copyright application

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(Reg. No. A777586) with the Copyright Office for Harvest Hymns. On or about

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February 11, 1952, the copyright was renewed (Reg. No. R90447) by the Sunday

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School Board of the Southern Baptist Convention.

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54.

On or about April 15, 1925, Summy incorporated a new Clayton F.

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Summy Co. (“Summy Co. II”) under the laws of the State of Illinois.

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information and belief, Summy Co. II was not a successor to Summy Co.; rather, it

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was incorporated as a new corporation.

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55.

Upon

The sheet music (with accompanying lyrics) to Happy Birthday to You

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was again published in 1928 in the compilation Children’s Praise and Worship,

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compiled and edited by A.L. Byers, Bessie L. Byrum, and Anna E. Koglin (“Byers,

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Byrum & Koglin”). Upon information and belief, Children’s Praise and Worship

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was the first time the song was published under the title Happy Birthday to You.

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56.

On or about April 7, 1928, Gospel Trumpet Co. (“Gospel”) filed a

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copyright application (Reg. No. A1068883) with the Copyright Office for

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Children’s Praise and Worship.

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57.

Children’s Praise and Worship attributed authorship or identified the

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copyrights to many of the works included in the book. Significantly, it did not

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attribute authorship or identify any copyright for the song Happy Birthday to You.

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58.

Children’s Praise and Worship did not provide any copyright notice for

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the combination of Good Morning to All with the lyrics to Happy Birthday to You,

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nor did it include the names of Mildred Hill or Patty Hill and did not attribute any

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authorship or ownership to the Hill Sisters.

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59.

Upon information and belief, the Hill Sisters had not fixed the lyrics to

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Happy Birthday to You or the song Happy Birthday to You in a tangible medium of

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expression, if ever, at any time before Gospel published Children’s Praise and

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Worship in 1928.

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60.

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Upon information and belief, Summy sold Summy Co. II to John F.

Sengstack (“Sengstack”) in or around 1930.
61.

Upon information and belief, on or about August 31, 1931, Sengstack

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incorporated a third Clayton F. Summy Co. (“Summy Co. III”) under the laws of the

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State of Delaware.

Upon information and belief, Summy Co. III was not a

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successor to Summy Co. or Summy Co. II; rather, it was incorporated as a new

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corporation.

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62.

On May 17, 1933, Summy Co. II was dissolved for failure to pay taxes.

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63.

On July 28, 1933, Happy Birthday to You was used in the world’s first

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singing telegram.

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64.

On September 30, 1933, the Broadway show As Thousands Cheer,

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produced by Sam Harris with music and lyrics written by Irving Berlin, began using

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the song Happy Birthday to You in public performances.

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65.

On August 14, 1934, Jessica Hill, a sister of Mildred and Patty Hill,

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commenced an action against Sam Harris in the Southern District of New York,

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captioned Hill v. Harris, Eq. No. 78-350, claiming that the performance of Happy to

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Birthday to You in As Thousands Cheer infringed on the Hill Sisters’ 1893 and 1896

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copyrights to Good Morning to All. Jessica Hill asserted no claim in that action

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regarding Happy Birthday to You, alone or in combination with Good Morning to

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All.

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66.

On January 21, 1935, Jessica Hill commenced an action against the

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Federal Broadcasting Corp. in the Southern District of New York, captioned Hill v.

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Federal Broadcasting Corp., Eq. No. 79-312, claiming infringement on the Hill

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Sisters’ 1893 and 1896 copyrights to Good Morning to All. Jessica Hill asserted no

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claim in that action regarding Happy Birthday to You, alone or in combination with

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Good Morning to All.

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67.

In 1934 and 1935, Jessica Hill sold and assigned to Summy Co. III

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certain piano arrangements of Good Morning to All, including publishing, public

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performance, and mechanical reproduction rights, copyright, and extension of

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copyright in exchange for a percentage of the retail sales revenue from the sheet

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music.

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68.

On or about December 29, 1934, Summy Co. III filed an Application

for Copyright for Republished Musical Composition with new Copyright Matter

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(Reg. No. E45655) with the Copyright Office for the song Happy Birthday.

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69.

In that December 1934 Application for Copyright, Summy Co. III

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claimed to be the proprietor of the copyright as a work for hire by Preston Ware

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Orem (“Orem”) and claimed the copyrighted new matter as “arrangement by piano

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solo.”

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70.

The lyrics to Happy Birthday to You were not included on the work

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registered with the Copyright Office as Reg. No. E45655. The application did not

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contain the names of the Hill Sisters and did not claim copyright in the lyrics to

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Happy Birthday to You alone or in combination with the melody of Good Morning

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to All.

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71.

The work registered with the Copyright Office as Reg. No. E45655 was

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not eligible for federal copyright protection in that it consisted entirely of

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information that was common property and contained no original authorship, except

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as to the arrangement itself.

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72.

On or about February 18, 1935, Summy Co. III filed an Application for

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Copyright for Republished Musical Composition with new Copyright Matter (Reg.

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No. E46661) with the Copyright Office for the song Happy Birthday.

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73.

In that February 1935 Application for Copyright, Summy Co. III

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claimed to be the proprietor of the copyright as a work for hire by Orem and claimed

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the copyrighted new matter as “arrangement for four hands at one piano.”

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74.

The lyrics to Happy Birthday to You were not included on the work

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registered with the Copyright Office as Reg. No. E46661. The application did not

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contain the names of the Hill Sisters and did not claim copyright in the lyrics to

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Happy Birthday to You alone or in combination with the melody of Good Morning

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to All.

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75.

The work registered with the Copyright Office as Reg. No. E46661 was

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not eligible for federal copyright protection in that it consisted entirely of

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information that was common property and contained no original authorship, except

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as to the arrangement itself.

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76.

On or about April 5, 1935, Summy Co. III filed an Application for

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Copyright for Republished Musical Composition with new Copyright Matter (Reg.

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No. E47439) with the Copyright Office for the song Happy Birthday.

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77.

In that April 1935 Application for Copyright, Summy Co. III claimed

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to be the proprietor of the copyright as a work for hire by Orem and claimed the

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copyrighted new matter as “arrangement of second piano part.”

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78.

The lyrics to Happy Birthday to You were not included on the work

registered with the Copyright Office as Reg. No. E47439.

The application did not

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contain the names of the Hill Sisters and did not claim copyright in the lyrics to

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Happy Birthday to You alone or in combination with the melody of Good Morning

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to All.

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79.

The work registered with the Copyright Office as Reg. No. E47439 was

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not eligible for federal copyright protection in that it consisted entirely of

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information that was common property and contained no original authorship, except

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as to the arrangement itself.

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80.

On or about April 5, 1935, Summy Co. III filed an Application for

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Copyright for Republished Musical Composition with new Copyright Matter (Reg.

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No. E47440) with the Copyright Office for the song Happy Birthday.

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81.

In that additional April 1935 Application for Copyright, Summy Co. III

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claimed to be the proprietor of the copyright as a work for hire by Orem and claimed

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the copyrighted new matter as “arrangement for six hands at one piano.”

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82.

The lyrics to Happy Birthday to You were not included on the work

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registered with the Copyright Office as Reg. No. E47440. The application did not

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contain the names of the Hill Sisters and did not claim copyright in the lyrics to

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Happy Birthday to You alone or in combination with the melody of Good Morning

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to All.

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83.

The work registered with the Copyright Office as Reg. No. E47440 was

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not eligible for federal copyright protection in that it consisted entirely of

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information that was common property and contained no original authorship, except

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as to the arrangement itself.

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84.

On December 9, 1935, Summy Co. III filed an Application for

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Copyright for Republished Musical Composition with new Copyright Matter (Reg.

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No. E51988) with the Copyright Office for Happy Birthday to You.

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85.

In that December 1935 Application for Copyright, Summy Co. III

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claimed to be the proprietor of the copyright as a work for hire by R.R. Forman

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(“Forman”) and claimed the copyrighted new matter as “arrangement for Unison

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Chorus and revised text.” The sheet music deposited with the application credited

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Forman only for the arrangement, not for any lyrics, and did not credit the Hill

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Sisters with writing the lyrics to Happy Birthday to You.

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86.

The lyrics to Happy Birthday to You, including a second verse as the

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revised text, were included on the work registered with the Copyright Office as Reg.

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No. E51988. However, the December 1935 Application for Copyright did not

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attribute authorship of the lyrics to either of the Hill Sisters and did not claim

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copyright in the lyrics to Happy Birthday to You alone or in combination with the

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melody of Good Morning to All.

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87.

The work registered with the Copyright Office as Reg. No. E51988 was

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not eligible for federal copyright protection in that it consisted entirely of

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information that was common property and contained no original authorship, except

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as to the sheet music arrangement itself.

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88.

The work registered as Reg. No. E51988 was not eligible for federal

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copyright protection because Summy Co. III did not have authorization from the

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author to publish that work.

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89.

On December 9, 1935, Summy Co. III filed an Application for

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Copyright for Republished Musical Composition with new Copyright Matter (Reg.

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No. E51990) with the Copyright Office for Happy Birthday to You.

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90.

In that additional December 1935 Application for Copyright, Summy

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Co. III claimed to be the proprietor of the copyright as a work for hire by Orem and

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claimed the copyrighted new matter as “arrangement as easy piano solo, with text.”

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The sheet music deposited with the application credited Orem only for the

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arrangement, not for any lyrics, and did not credit the Hill Sisters with writing the

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lyrics to Happy Birthday to You.

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91.

The lyrics to Happy Birthday to You were included on the work

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registered with the Copyright Office as Reg. No. E51990. However, the additional

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December 1935 Application for Copyright did not attribute authorship of the lyrics

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to either of the Hill Sisters, did not contain the names of either of the Hill Sisters,

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and did not claim any copyright in the lyrics to Happy Birthday to You alone or in

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combination with the melody of Good Morning to All.

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92.

The work registered with the Copyright Office as Reg. No. E51990 was

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not eligible for federal copyright protection in that it consisted entirely of

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information that was common property and contained no original authorship, except

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as to the sheet music arrangement itself.

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93.

The work registered as Reg. No. E51990 was not eligible for federal

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copyright protection because Summy Co. III did not have authorization from the

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author to publish that work.

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94.

In or about February, 1938, Summy Co. III purported to grant to

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ASCAP the right to license Happy Birthday to You for public performances and to

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collect fees for such use on behalf of Summy Co. III. ASCAP thus began working

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as agent for Summy Co. III in collecting fees for Summy Co. III for licensing Happy

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Birthday to You.

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95.

On October 15, 1942, The Hill Foundation commenced an action

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against Summy Co. III in the Southern District of New York, captioned The Hill

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Foundation, Inc. v. Clayton F. Summy Co., Case No. 19-377, for an accounting of

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the royalties received by it for the licensing of Happy Birthday to You. The Hill

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Foundation asserted claims under the 1893, 1896, 1899, and 1907 copyrights for

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Good Morning to All and did not claim any copyright to the lyrics to Happy

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Birthday to You, alone or in combination with the melody of Good Morning to All.

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96.

On March 2, 1943, The Hill Foundation commenced an action against

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the Postal Telegraph Cable Company in the Southern District of New York,

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captioned The Hill Foundation, Inc. v. Postal Telegraph-Cable Co., Case No. 20-

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439, for infringement of the Hill Sisters’ purported 1893, 1896, and 1899 copyrights

8

to Good Morning to All. The Hill Foundation asserted claims only under the 1893,

9

1896, and 1899 copyrights for Good Morning to All and did not claim any copyright

10

to the lyrics to Happy Birthday to You, alone or in combination with the melody of

11

Good Morning to All.

12

97.

Despite the filing of four prior cases in the Southern District of New

13

York asserting copyrights to Good Morning to All, there has been no judicial

14

determination of the validity or scope of any copyright related to Good Morning to

15

All.

16

98.

17

Company.

18

99.

In or about 1957, Summy Co. III changed its name to Summy-Birchard
In 1962, Summy Co. III (renamed as Summy-Birchard Company) filed

19

renewals for each of the six registrations it obtained in 1934 and 1935 (Reg. Nos.

20

E45655, E46661, E47439, E47440, E51988, and E51990), each renewal was

21

specifically and expressly confined to the musical arrangements.

22

100. In particular, on December 6, 1962, Summy Co. III filed a renewal

23

application for Reg. No. E51988, as employer for hire of Forman. Forman did not

24

write the lyrics to Happy Birthday to You or the combination of those lyrics with the

25

melody of Good Morning to All, and neither Summy Co. III nor defendant

26

Warner/Chappell has claimed otherwise.

27

101. Also on December 6, 1962, Summy Co. III filed a renewal application

28

for Reg. No. E51990, as employer for hire of Orem. Orem did not write the lyrics to

- 15 -

1

Happy Birthday to You or the combination of those lyrics with the melody of Good

2

Morning to All, and neither Summy Co. III nor defendant Warner/Chappell has

3

claimed otherwise.

4

102. Summy-Birchard Company was renamed Birch Tree Ltd. in the 1970s

5

and was acquired by Warner/Chappell in or about 1998.

6

Happy Birthday to You – 100 Years Later

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

103. According to a 1999 press release by ASCAP, Happy Birthday to You
was the most popular song of the 20th Century.
104. The 1998 edition of the Guinness Book of World Records identified
Happy Birthday to You as the most recognized song in the English language.
105. Defendant Warner/Chappell currently claims it owns the exclusive
copyright to Happy Birthday to You based on the piano arrangements that Summy
Co. III published in 1935.
106. ASCAP provides public performance licenses to bars, clubs, websites,
and many other venues. ASCAP “blanket licenses” grant the licensee the right to
publicly perform any or all of the over 8.5 million songs in ASCAP repertory in
exchange for an annual fee. The public performance license royalties are distributed
to ASCAP members based on surveys of performances of each ASCAP repertory
song across different media. By registering Happy Birthday to You with ASCAP,
Defendant Warner/Chappell obtains a share of blanket license revenue that would
otherwise be paid to all other ASCAP members, in proportion to their songs’ survey
shares.
107. Plaintiff Marya d/b/a RTAF recorded the song Happy Birthday to You
at a live show in San Francisco, to be released as part of a “live” album. She learned
that defendant Warner/Chappell claimed exclusive copyright ownership to Happy
Birthday to You, including for purposes of issuing mechanical licenses.
108. Accordingly, on June 17, 2013, Plaintiff Marya paid Warner/Chappell
$455 for a mechanical license for the reproduction and distribution of 5,000 albums.
- 16 -

CLASS ALLEGATIONS

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

109. Plaintiff Marya brings this action under Federal Rules of Civil
Procedure 23(a) and (b) as a class action on behalf of herself and all others similarly
situated for the purpose of asserting the claims alleged in this Complaint on a
common basis.
110. The proposed Class is comprised of:
All persons or entities (excluding Warner/Chappell’s directors,
officers, employees, and affiliates) who entered into a license with
Warner/Chappell, or paid Warner/Chappell, directly or indirectly
through its agents, a licensing fee for the song Happy Birthday to
You at any time from June 18, 2009, until Warner/Chappell’s
conduct as alleged herein has ceased.
111. Although Plaintiff Marya does not know the exact size of the Class or
the identities of all members of the Class, upon information and belief that
information can be readily obtained from the books and records of defendant
Warner/Chappell. Plaintiff believes that the Class includes thousands of persons or
entities who are widely geographically disbursed. Thus, the proposed Class is so
numerous that joinder of all members is impracticable.
112. The claims of all members of the Class involve common questions of
law and fact including:
a.

to public use;
b.

27
28

whether Warner/Chappell is the exclusive owner of the copyright to
Happy Birthday to You and is thus entitled to all of the rights conferred

25
26

whether Happy Birthday to You is in the public domain and dedicated

in 17 U.S.C. § 102;
c.

whether Warner/Chappell has the right to collect fees for the use of
Happy Birthday to You;

- 17 -

1

d.

whether Warner/Chappell has violated the law by demanding and

2

collecting fees for the use of Happy Birthday to You despite not having

3

a valid copyright to the song; and

4

e.

whether Warner/Chappell is required to return unlawfully obtained

5

payments to plaintiff Marya and the other members of the Class and, if

6

so, what amount is to be returned.

7
8

113. With respect to Claim III, the common questions of law and fact
predominate over any potential individual issues.

9

114. Plaintiff Marya’s claims are typical of the claims of all other members

10

of the Class and plaintiff Marya’s interests do not conflict with the interests of any

11

other member of the Class, in that plaintiff and the other members of the Class were

12

subjected to the same unlawful conduct.

13

115. Plaintiff Marya is committed to the vigorous prosecution of this action

14

and has retained competent legal counsel experienced in class action and complex

15

litigation.

16

116. Plaintiff is an adequate representative of the Class and, together with its

17

attorneys, is able to and will fairly and adequately protect the interests of the Class

18

and its members.

19

117. A class action is superior to other available methods for the fair, just,

20

and efficient adjudication of the claims asserted herein. Joinder of all members of

21

the Class is impracticable and, for financial and other reasons, it would be

22

impractical for individual members of the Class to pursue separate claims.

23

118. Moreover, the prosecution of separate actions by individual members

24

of the Class would create the risk of varying and inconsistent adjudications, and

25

would unduly burden the courts.

26
27

119. Plaintiff Marya anticipates no difficulty in the management of this
litigation as a class action.

28

- 18 -

1

FIRST CLAIM FOR RELIEF

2

DECLARATORY JUDGMENT PURSUANT TO 28 U.S.C. § 2201

3

(On Behalf Of Plaintiff And The Class)

4

(Against Defendant Warner/Chappell)

5
6

120. Plaintiff Marya repeats and realleges paragraphs 1 through 119 set forth
above as though they were fully set forth herein.

7

121. Plaintiff Marya brings this claim individually on her own behalf and on

8

behalf of the proposed Class pursuant to Rule 23(b)(2) of the Federal Rules of Civil

9

Procedure.

10

122. Plaintiff Marya seeks adjudication of an actual controversy arising

11

under the Copyright Act, 17 U.S.C. §§ 101 et seq., in connection with defendant

12

Warner/Chappell’s purported copyright claim to Happy Birthday to You. Plaintiff

13

seeks the Court’s declaration that the Copyright Act does not bestow upon

14

Warner/Chappell the rights it has asserted and enforced against plaintiff Marya and

15

the other members of the Class.

16

123. Defendant Warner/Chappell asserts that it is entitled to royalties

17

pursuant to 17 U.S.C. § 115 for the creation and distribution of phonorecords and

18

digital downloads of the composition Happy Birthday to You, under threat of a claim

19

of copyright infringement.

20

124. Plaintiff Marya’s claim presents a justiciable controversy because

21

plaintiff Marya’s agreement to pay defendant Warner/Chappell and its actual

22

payment to Warner/Chappell for use of the song Happy Birthday to You in her

23

album, was the involuntary result of Warner/Chappell’s assertion of a copyright and

24

the risk that plaintiff Marya would be exposed to substantial statutory penalties

25

under the Copyright Act had she failed to enter such an agreement and pay

26

Warner/Chappell standard mechanical license royalties it demanded, but then paid

27

for the mechanical license anyway.

28

125. Plaintiff Marya seeks the Court’s determination as to whether

- 19 -

1

defendant Warner/Chappell is entitled to assert ownership of the copyright to Happy

2

Birthday to You against Marya pursuant to the Copyright Act as Warner/Chappell

3

claims, or whether Warner/Chappell is wielding a false claim of ownership to inhibit

4

plaintiff Marya’s use and enjoyment (and the public’s use and enjoyment) of

5

intellectual property which is rightfully in the public domain.

6

126. If and to the extent that defendant Warner/Chappell relies upon the

7

1893, 1896, 1899, or 1907 copyrights for the melody for Good Morning to All, those

8

copyrights expired or were forfeited as alleged herein.

9

127. As alleged above, the 1893 and 1896 copyrights to the original and

10

revised versions of Song Stories for the Kindergarten, which contained the song

11

Good Morning to All, were not renewed by Summy and accordingly expired in 1921

12

and 1924, respectively.

13

128. As alleged above, the 1899 copyright to Song Stories for the Sunday

14

School, which contained Good Morning to All, and the 1907 copyright to Good

15

Morning to All were not renewed by Summy Co. before its expiration in 1920 and

16

accordingly expired in 1927 and 1935, respectively.

17

129. The 1893, 1896, 1899, and 1907 copyrights to Good Morning to All

18

were forfeited by the republication of Good Morning to All in 1921 without proper

19

notice of its original 1893 copyright.

20
21

130. The copyright to Good Morning to All expired in 1921 because the
1893 copyright to Song Stories for the Kindergarten was not properly renewed.

22

131. The piano arrangements for Happy Birthday to You published by

23

Summy Co. III in 1935 (Reg. Nos. E51988 and E51990) were not eligible for

24

federal copyright protection because those works did not contain original works of

25

authorship, except to the extent of the piano arrangements themselves.

26
27
28

132. The 1934 and 1935 copyrights pertained only to the piano
arrangements, not to the melody or lyrics of the song Happy Birthday to You.
133. The registration certificates for The Elementary Worker and His Work

- 20 -

1

in 1912, Harvest Hymns in 1924, and Children’s Praise and Worship in 1928, which

2

did not attribute authorship of the lyrics to Happy Birthday to You to anyone, are

3

prima facie evidence that the lyrics were not authored by the Hill Sisters.

4

134. If declaratory relief is not granted, defendant Warner/Chappell will

5

continue wrongfully to assert the exclusive copyright to Happy Birthday to You at

6

least until 2030, when the current term of the copyright expires under existing

7

copyright law.

8

135. Plaintiff therefore requests a declaration that:

9

(a)

defendant Warner/Chappell does not own the copyright to, or possess

10

the exclusive right to reproduce, distribute, or publicly perform, Happy

11

Birthday To You;

12

(b)

13

license for use of Happy Birthday To You; and

14

(c)

15

public use.

Warner/Chappell does not own the exclusive right to demand or grant a
Happy Birthday to You is in the public domain and is dedicated to the

16

SECOND CLAIM FOR RELIEF

17

UPON ENTRY OF DECLARATORY JUDGMENT

18

DECLARATORY AND INJUNCTIVE RELIEF

19

PURSUANT TO 28 U.S.C § 2202

20

(On Behalf of Plaintiff and the Class)

21

(Against Defendant Warner/Chappell)

22
23

136. Plaintiff Marya repeats and realleges paragraphs 1 through 135 set forth
above as though they were fully set forth herein.

24

137. Plaintiff Marya brings this claim individually on her own behalf and on

25

behalf of the Class pursuant to Rule 23(b)(2) of the Federal Rules of Civil

26

Procedure.

27

138. Under 28 U.S.C. § 2202 empowers this Court to grant, “necessary or

28

proper relief based on a declaratory judgment or decree . . . after reasonable notice

- 21 -

1

and hearing, against any adverse party whose rights have been determined by such

2

judgment.”

3

139. Plaintiff Marya and the other proposed Class members have been

4

harmed, and defendant Warner/Chappell has been unjustly enriched, by

5

Warner/Chappell’s takings.

6
7

140. Plaintiff Marya seeks relief for herself and the other members of the
proposed Class upon the entry of declaratory judgment upon Claim I, as follows:

8

(a)

an injunction to prevent defendant Warner/Chappell from

9

making further representations of ownership of the copyright to

10

Happy Birthday To You;

11

(b)

12

license fees paid to defendant Warner/Chappell, directly or indirectly

13

through its agents, in connection with the purported licenses it granted

14

to Marya and the other Class members;

15

(c)

16

Warner/Chappell, directly or indirectly through its agents, from

17

plaintiff Marya and the other Class members in connection with its

18

claim to ownership of the copyright to Happy Birthday to You; and

19

(d)

restitution to plaintiff Marya and the other Class members of

an accounting for all monetary benefits obtained by defendant

such other further and proper relief as this Court sees fit.

20

THIRD CLAIM FOR RELIEF

21

UNFAIR BUSINESS ACTS AND PRACTICES IN VIOLATION OF

22

CALIFORNIA BUSINESS AND PROFESSIONS CODE §§ 17200 ET SEQ.

23

(On Behalf of Plaintiff and the Class)

24

(Against Defendant Warner/Chappell)

25
26

141. Plaintiff Marya repeats and realleges paragraphs 1 through 119 set forth
above as though they were fully set forth herein.

27

142. Plaintiff Marya brings this claim individually on her own behalf and on

28

behalf of the Class pursuant to Rule 23(b)(3) of the Federal Rules of Civil

- 22 -

1

Procedure.

2

143. As alleged herein, plaintiff Marya and the other Class members have

3

paid licensing fees to defendant Warner/Chappell and have therefore suffered injury

4

in fact and have lost money or property as a result of defendant Warner/Chappell’s

5

conduct.

6
7

144. California’s Unfair Competition Law, Business & Professions Code §§
17200 et seq. (“UCL”), prohibits any unlawful or unfair business act or practice.

8

145. UCL § 17200 further prohibits any fraudulent business act or practice.

9

146. Defendant Warner/Chappell’s actions, claims, nondisclosures, and

10

misleading statements, as alleged in this Complaint, were unfair, false, misleading,

11

and likely to deceive the consuming public within the meaning of UCL §§ 17200,

12

17500.

13

147. Defendant Warner/Chappell’s conduct in exerting control over

14

exclusive copyright ownership to Happy Birthday to You to extract licensing fees is

15

deceptive and misleading because Warner/Chappell does not own the rights to

16

Happy Birthday to You.

17

148. Plaintiff Marya and the other members of the Class have, in fact, been

18

deceived as a result of their reasonable reliance upon defendant Warner/Chappell’s

19

materially false and misleading statements and omissions, as alleged above.

20

149. As a result of defendant Warner/Chappell’s unfair and fraudulent acts

21

and practices as alleged above, plaintiff Marya and the other Class members have

22

suffered substantial monetary injuries.

23

150. Plaintiff Marya and the other Class members reserve the right to allege

24

other violations of law which constitute other unfair or deceptive business acts or

25

practices. Such conduct is ongoing and continues to this date.

26
27
28

151. As a result of its deception, defendant Warner/Chappell has been able
to reap unjust revenue and profit.
152. Upon information and belief, defendant Warner/Chappell has collected

- 23 -

1

and continues to collect at least $2 million per year in licensing fees for Happy

2

Birthday to You. Therefore, the amount in controversy exceeds $5 million in the

3

aggregate.

4

153. Unless restrained and enjoined, defendant Warner/Chappell will

5

continue to engage in the above-described conduct. Accordingly, injunctive relief is

6

appropriate.

7

154. Plaintiff Marya, individually on its own behalf and on behalf of the

8

other members of the Class, seeks restitution and disgorgement of all money

9

obtained from plaintiff and the other members of the Class, collected as a result of

10

unfair competition, and all other relief this Court deems appropriate, consistent with

11

UCL § 17203.

12

FOURTH CLAIM FOR RELIEF

13

COMMON COUNT FOR MONEY HAD AND RECEIVED

14

(On Behalf of Plaintiff and the Class)

15

(Against Defendant Warner/Chappell)

16
17

155. Plaintiff Marya repeats and realleges paragraphs 1 through 135 set forth
above as though they were fully set forth herein.

18

156. Within the last four years Defendant Warner/Chappell became indebted

19

to all Plaintiff Marya and all class members for money had and received by

20

Defendant Warner/Chappell for the use and benefit of Plaintiff Marya and class

21

members. The money in equity and good conscience belongs to Plaintiff Marya and

22

class members.

23

FIFTH CLAIM FOR RELIEF

24

RECISSION FOR FAILURE OF CONSIDERATION,

25

(On Behalf of Plaintiff and the Class)

26

(Against Defendant Warner/Chappell)

27
28

157. Plaintiff Marya repeats and realleges paragraphs 1 through 135 set forth
above as though they were fully set forth herein.

- 24 -

1
2
3
4

158. Defendant’s purported licenses were worthless and ineffective, and do
not constitute a valid consideration.
159. The complete lack of consideration obviates any need for notice to
Defendant.
SIXTH CLAIM FOR RELIEF

5
6

FALSE ADVERTISING, CAL. BUS. & PROF. CODE §§ 17500 ET SEQ.

7

(On Behalf of Plaintiff and the Class)

8

(Against Defendant Warner/Chappell)

9
10

160. Plaintiff Marya repeats and realleges paragraphs 1 through 135 set forth
above as though they were fully set forth herein.

11

161. On information and belief, Defendant Warner/Chappell intended to

12

induce the public to enter into an obligation related to its alleged property, namely

13

the composition Happy Birthday to You.

14

162. Defendant Warner/Chappell publicly disseminated advertising which

15

contained statements which were untrue and misleading and which concerned the

16

composition Happy Birthday to You, for which they improperly sought and received

17

licensing fees. Defendant knew, or in the exercise of reasonable care should have

18

known, that these statements were untrue and misleading.

19
20

163. Plaintiff and class members have suffered injury in fact and have lost
money as a result of such unfair competition.
DEMAND FOR JURY TRIAL

21
22
23

160. Plaintiff Marya hereby demands a trial by jury to the extent that the
allegations herein are triable by jury under Federal Rules of Civil Procedure 38-39.
PRAYER RELIEF

24
25
26

WHEREFORE, plaintiff Marya, on behalf of herself and the other members
of the Class, prays for judgment against defendant Warner/Chappell as follows:

27

A.

certifying the Class as requested herein;

28

B.

declaring that the song Happy Birthday to You is not protected by

- 25 -

1
2
3
4
5
6

federal copyright law, is dedicated to public use, and is in the public domain;
C.

permanently enjoining defendant Warner/Chappell from asserting any

copyright to the song Happy Birthday to You;
D.

permanently enjoining defendant Warner/Chappell from charging or

collecting any licensing or other fees for use of the song Happy Birthday to You;
E.

imposing

a

constructive

trust

upon

the

money

defendant

7

Warner/Chappell unlawfully collected from plaintiff Marya, the other members of

8

the Class, and ASCAP for use of the song Happy Birthday to You;

9

F.

ordering defendant Warner/Chappell to return to plaintiff Marya and

10

the other members of the Class all the licensing or other fees it has collected from

11

them, directly or indirectly through its agents, for use of the song Happy Birthday to

12

You, together with interest thereon;

13
14
15
16

G.

awarding plaintiff Marya and the other members of the Class restitution

for Warner/Chappell’s prior acts and practices;
H.

awarding plaintiff Marya and the Class reasonable attorneys’ fees and

costs; and
granting such other and further relief as the Court deems just and

17

I.

18

proper.

19

Dated: June 19, 2013

20

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP

fl
22

BETSY

/J

f/t(th.
MANIFOA
.

23
24
25
26
27
28

FRANCIS M. GREGOREK
BETSY C. MANIFOLD
RACHELE R. RICKERT
MARISA C. LIVESAY
750 B Street, Suite 2770
SanDiego, CA 92101
Telephone: [phone]

-

26

-

Facsimile: 619/234-4599
gregorek@whath corn
[e-mail]
[e-mail]
[e-mail]

1
2
3
4

WOLF IHLALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN
JANINE POLLACK
BETH A LANDES
GITI BAGHBAN
270 Madison Avenue
New York, NY 10016
Telephone: [phone]
Facsimile: 212-545-4753
ri&in@whafhcom
[e-mail]
[e-mail]
baghbanwhafh.corn

5
6
7
8

10

12
13
14
15
16

Dated: June 19, 2013

DONAHUE GALLAGHER WOODS LLP

17
18
19
20
21
22
23

25

DANIEL J. SCHACHT
WILLIAM R. HILL (114954)
rock(donahue.com
AN1E5ThEW S. MACKAY (197074)
andrew(ä)donahue.com
DANJEt J. SCHACHT (259717)
danie1cZidonahue.com
DONAFIUE GALLAGI-R WOODS LLP
1999 Harrison Street, 25 Floor
Oakland, CA 946 12-3520
Teleohone: 510/451-0544
Facsimile: 510/832-1486

26
27
28

-

27

5

RANDALL S. NEWMAN PC
RANDALL S. NEWMAN (SBN 190547)
37 Wall Street, Penthouse D
New York, NY 10005
Telephone: [phone]
Facsimile: 212/797-3172
[e-mail]

6

Attorneys for Plaintiff Rupa Marya

1
2
3
4

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

WARNER:19984.complaint

- 28 -

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
CIVIL COVER SHEET

dismissed, remanded or closed?
VIII(a). IDENTICAL CASES: Has this action been previously filed in this court and

j NO

fl

YES

fl

J

YES

If yes, list case number(s):

VIlI(b). RELATED CASES: Have any cases been previously filed in this court that are related to the present case?

NO

cvi 3-4418 GHK (MRWx)

If yes, list case number(s):

Civil cases are deemed related if a previously filed case and the present case:
(Check all boxes that apply)

fl A. Arise from the same or closely related transactions, happenings, or events; or
B. Call for determination of the same or substantially related or similar questions of law and fact; or
C. For other reasons would entail substantial duplication of labor if heard by different judges; or
0. Involve the same patent, trademark or copyright,anione of the factors identified above in a, b or c also is present.

IX.

VENUE: (When completing the following information, use an additional sheet if necessary.)

EACH named
(a) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which
plaintiff resides.
Check here if the government, its agencies or employees is a named plaintiff. If this box is checked, go to item (b).
California County outside of this District; State, if other than California; or Foreign

County in this District:*

Country
SAN MATEO

EACH named
(b) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which
defendant resides.
Check here if the government, its agencies or employees is a named defendant. If this box is checked, go to item (c).
California County outside of this District; State, if other than California; or Foreign
.
.
County in this Distrlct:*
Country
LOS ANGELES
.

(c)

.

Country, in which
List the County in this District; California County outside of this District; State if other than California; or Foreign

EACH claim arose.

NOTE: In land condemnation cases, use the location of the tract of land involved.

California County outside of this District; State,

County in this Dlstrlct:*
.

.

.

if other than California; or Foreign

Country

LOS ANGELES
Los Angeles, Orange, San Bernardino, Riverside, Ventura, Santa Barbara, or San Luis Obispo Counties

Note:

In land condemnation cases, use the location of the tract of land involved
(-.

,

I-

4

L /
DATE: 06/19/2013
X. SIGNATURE OF ATTORNEY (OR SELF-REPRESENTED LITIGANT):
Notice to Counsel/Parties: The CV-71 (JS-44) Civil Cover Sheet and the informatioontained herein iher rep’ice nor supplement the filing and service of pleadings or
ptember 1974, is required pursuant to Local Rule 3-1 is not filed
other papers as required by law. This form, approved by the Judicial Conference of the United States i
but is used by the Clerk of the Court for the purpose of statistics, venue and initiating the civil docket sheet. (For more detailed instructions, see separate instructions sheet).

2

‘

i/

Key to Statistical codes relating to Social Security Cases:
Substantive Statement of Cause of Action
Nature of Suit Code Abbreviation
All claims for health insurance benefits (Medicare) under Title 18, Part A, of the Social Security Act, as amended. Also,
HIA
861
include claims by hospitals, skilled nursing facilities, etc., for certification as providers of services under the program.
(42 U.S.C. 1935FF(b))
862

BL

All claims for Black Lung benefits under Title 4, Part B, of the Federal Coal Mine Health and Safety Act of 1969. (30 U.S.C.
923)

863

DIWC

All claims filed by insured workers for disability insurance benefits under Title 2 of the Social Security Act, as amended; plus
all claims filed for child’s insurance benefits based on disability. (42 U.S.C. 405 (g))

863

DIWW

All claims filed for widows or widowers insurance benefits based on disability under Title 2 of the Social Security Act, as
amended. (42 U.S.C. 405 (g))

864

SSID

865

RSI

CV-71 (02/13)

All claims for supplemental security income payments based upon disability filed under Title 16 of the Social Security Act, as
amended.
All claims for retirement (old age) and survivors benefits under Title 2 of the Social Security Act, as amended.
(42 U.S.C. 405 (g))
CIVIL COVER SHEET

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