Rupa Marya v. Warner Chappell Music Inc

Filing 291

FIFTH AMENDED COMPLAINT against Defendants Summy-Birchard Inc, Warner Chappell Music Inc amending Amended Complaint, 95 , filed by Plaintiffs Good Morning to You Productions Corp, Rupa Marya, Robert Siegel, Majar Productions LLC(Manifold, Betsy)

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BETSY C. MANIFOLD (182450)
[e-mail]
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599
Interim Lead Class Counsel for Plaintiffs
[Additional Counsel on Signature Page]

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION

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GOOD MORNING TO YOU
PRODUCTIONS CORP.;
ROBERT SIEGEL;
RUPA MARYA; and
MAJAR PRODUCTIONS, LLC,
On Behalf of Themselves and All
Others Similarly Situated,

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Plaintiffs,

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v.
WARNER/CHAPPELL MUSIC,
INC.; and SUMMY-BIRCHARD,
INC.,

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Defendants.

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Lead Case No. CV 13-04460-GHK (MRWx)
FIFTH AMENDED CONSOLIDATED
COMPLAINT FOR:
(1) DECLARATORY JUDGMENT
(28 U.S.C. § 2201);
(2) DECLARATORY AND
INJUNCTIVE RELIEF AND
DAMAGES (28 U.S.C. § 2202);
(3) VIOLATIONS OF CALIFORNIA’S
UNFAIR COMPETITION LAWS
(Bus. & Prof. Code §§ 17200 et seq.);
(4) BREACH OF CONTRACT;
(5) COMMON LAW MONEY HAD
AND RECEIVED;
(6) RESCISSION FOR FAILURE OF
CONSIDERATION; and
(7) VIOLATIONS OF CALIFORNIA’S
FALSE ADVERTISING LAWS
(Bus. & Prof. Code §§ 17500 et seq.)
CLASS ACTION
DEMAND FOR JURY TRIAL

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Plaintiffs, Good Morning to You Productions Corp. (“GMTY”), Robert

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Siegel (“Siegel”), Rupa Marya d/b/a/ Rupa Marya & The April Fishes (“Rupa”), and

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Majar Productions, LLC (“Majar”) (collectively herein “Plaintiffs”), on behalf of

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themselves and all others similarly situated, by their undersigned attorneys, as and

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for their Fourth Amended Consolidated Complaint For: (1) Declaratory Judgment

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(28 U.S.C. § 2201); (2) Declaratory and Injunctive Relief and Damages (28 U.S.C. §

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2202); (3) Violations of California’s Unfair Competition Laws (Bus. & Prof. Code

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§§ 17200 et seq.); (4) Breach of Contract; (5) Common Law Money Had and

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Received; (6) Rescission for Failure of Consideration; and (7) Violations of

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California’s False Advertising Laws (Bus. & Prof. Code §§ 17500 et seq.) against

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defendants Warner/Chappell Music, Inc. (“Warner/Chappell”) and Summy-

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Birchard, Inc. (“SBI”) (collectively “Defendants”), hereby allege as follows:

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JURISDICTION AND VENUE
1.

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

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28 U.S.C. § 1331 and 28 U.S.C. § 1338 with respect to claims seeking declaratory

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and other relief arising under the Copyright Act, 17 U.S.C. §§ 101 et seq.; pursuant

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to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.; pursuant to the Class

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Action Fairness Act, 28 U.S.C. § 1332(d)(2); and supplemental jurisdiction pursuant

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to 28 U.S.C. § 1367 over the entire case or controversy.

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2.

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

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under 28 U.S.C. §§ 1391(b)-(c) and 28 U.S.C. § 1400(a), in that the claims arise in

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this Judicial District where both Defendants’ principal places of business are located

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and where they regularly conduct business.

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3.

Paragraph 8 of the Film and Synchronization and Performance License

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(“Synchronization License”) by and between assignee plaintiff Siegel and defendant

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Warner/Chappell states: “this license has been entered into in, and shall be

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interpreted in accordance with the laws of the state of California, and any action or

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proceeding concerning the interpretation and/or enforcement of this license shall be

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heard only in the state or federal courts situated in Los Angeles county. . . .”

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Defendant Warner/Chappell requires any action or proceeding related thereto to be

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brought in this District under the Synchronization License.
INTRODUCTION

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4.

This is an action to declare that Defendants do not own a copyright to

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the world’s most popular song, Happy Birthday to You (the “Song”), that if

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Defendants own any copyright to the Song, it is limited to four specific piano

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arrangements or an obscure second verse that has no commercial value, that any

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other copyright to the Song that Defendants may own or ever owned are invalid or

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have expired, and that the Song is dedicated to public use and in the public domain;

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and in turn to declare that Defendants must return millions of dollars of unlawful

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licensing fees collected by defendant Warner/Chappell pursuant to its wrongful

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assertion of copyright ownership of the Song.

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5.

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

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a “musical composition consists of music, including any accompanying words, and

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is normally registered as a work of the performing arts.” Copyright Office Circular

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56A, “Copyright Registration of Musical Compositions and Sound Recordings,” at 1

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(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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6.

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. At all relevant times, Warner/Chappell declared in the first two sentences on

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the “About Us” page of its website that “Warner/Chappell Music is [Warner Music

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Group]’s award-winning global music publishing company. The Warner/Chappell

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Music catalog includes standards such as ‘Happy Birthday To You’. . .” (available

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at www.warnerchappell.com/about.jsp?currenttab=about_us as of June 18, 2013).

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

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

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

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7.

Irrefutable documentary evidence, some dating back to 1893, shows

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that if defendant Warner/Chappell owned or owns any copyrights to Happy Birthday

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to You, those rights were and are limited to the extremely narrow right to reproduce

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and distribute specific piano arrangements for the Song, or an obscure second verse

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that has no commercial value, which were published in 1935. That same evidence

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also shows that if Warner/Chappell ever owned a copyright to any other part of the

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Song, it was invalid or expired no later than 1921. Significantly, no court has ever

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adjudicated either the scope or validity of the Defendants’ claimed interest in Happy

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Birthday to You, nor in the Song’s melody or its familiar lyrics, which are,

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themselves, independent works.

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8.

Various legal scholars and copyright and music industry experts agree

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with the foregoing, questioning the validity of Defendants’ assertion of copyright in

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the Song, and supporting the conclusion that Happy Birthday properly exists in the

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public domain. For example, Professor Robert Brauneis, Professor of Law and Co-

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Director of the Intellectual Property Law Program at George Washington

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University, and a leading legal scholar in intellectual property law, has stated that it

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is “doubtful” that Happy Birthday “is really still under copyright.”

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Plaintiffs GMTY, Siegel, Rupa, and Majar, on behalf of themselves and

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all others similarly situated, seek a declaration that Happy Birthday to You is

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dedicated to public use and is in the public domain as well as monetary damages and

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restitution of all the unlawful licensing fees that defendants have improperly

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collected from Plaintiffs and all other Class members.

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PLAINTIFFS

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10.

Plaintiff GMTY is a New York corporation with its principal place of

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business located in New York County. Under a claim of copyright by defendant

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Warner/Chappell, on or about March 26, 2013, GMTY paid defendant

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Warner/Chappell the sum of $1,500 for a synchronization license to use Happy

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Birthday to You and on or about April 24, 2013, GMTY entered into a

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synchronization license with Warner/Chappell, as alleged more fully herein.

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11.

Plaintiff Robert Siegel is the assignee of BIG FAN PRODUCTIONS,

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INC. (“BIG FAN”), an inactive New York corporation and a resident of New York,

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New York. Under a claim of copyright by defendant Warner/Chappell, on or about

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September 1, 2009, BIG FAN paid to defendant Warner/Chappell the sum of $3,000

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for the Synchronization Licenses to use Happy Birthday to You, as alleged more

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fully herein. Plaintiff Siegel, the then-President of BIG FAN, was assigned BIG

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FAN’s rights and claims, including those pertaining to the Synchronization License

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pursuant to Paragraph 7 thereof between defendant Warner/Chappell and BIG FAN,

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entered into on or about July 20, 2009.

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12.

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

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The April Fishes” (“RTAF”), and a member of the American Society of Composers,

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Authors and Publishers (“ASCAP”). Plaintiff Rupa is a resident of Alameda

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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 Rupa 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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13.

Plaintiff Majar is a Los Angeles-based film production company that

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produced the award winning documentary film “No Subtitles Necessary: László &

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Vilmos” (hereafter, “No Subtitles Necessary” or the “Film”). The Film follows the

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lives of renowned cinematographers László Kovacs (“Kovacs”) and Vilmos

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Zsigmond (“Zsigmond”) from escaping the 1956 Soviet invasion of Hungary to the

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present day. As film students in Hungary, Kovacs and Zsigmond shot footage of the

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Russian invasion of Budapest and subsequently risked their lives to smuggle it out

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of the country. They fled to America and settled in Hollywood, eventually saving

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enough money to buy their own 16mm camera to begin shooting movies. Both rose

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to prominence in the late 1960’s and 1970’s having shot films such as “Easy Rider,”

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“Five Easy Pieces,” “McCabe and Mrs. Miller,” “Deliverance,” “Paper Moon,” and

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“Close Encounters of the Third Kind.” No Subtitles Necessary tells the story of

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their lives and careers.
DEFENDANTS

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14.

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 and regularly conducts business within this Judicial District.

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Defendant SBI is a Wyoming corporation with its principal place of

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business located at 10585 Santa Monica Boulevard, Los Angeles, California 90025.

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SBI regularly conducts business within this Judicial District, where it may be found.

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On information and belief, SBI is a subsidiary of Warner/Chappell, having been

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acquired by Warner/Chappell in or around 1998.

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FACTUAL BACKGROUND
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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17.

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

Hill Sisters.

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18.

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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19.

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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20.

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

(Reg. No. 45997) with the Copyright Office for Song Stories for the Kindergarten.
21.

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

the copyright’s proprietor, but not the author of the copyrighted works.
22.

Song Stories for the Kindergarten bears a copyright notice reading

“Copyright 1893, by Clayton F. Summy.”
23.

As proprietor of the 1893 copyright in Song Stories for the

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Kindergarten, Summy asserted copyright ownership in the compilation of songs, as

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

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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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25.

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

for the Kindergarten.
27.

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

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

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limited term of 25 years. On that same date, Summy purported to assign all his

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right, title, and interest in Song Stories for the Kindergarten to Summy Co.

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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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29.

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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30.

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.
31.

The 1896 version of Song Stories for the Kindergarten bears a

copyright notice reading “Copyright 1896, by Clayton F. Summy.”
32.

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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33.

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

version of Song Stories for the Kindergarten.
34.

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. And yet again, neither the song Happy Birthday nor the lyrics

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to Happy Birthday were published in “Song Stories for the Sunday School.”

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35.

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.
36.

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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37.

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This collection of songs has been published in response to earnest requests

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from various sources. They are taken from the book, Song Stories for the

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Kindergarten by the MISSES HILL, and are the copyright property of the

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publishers. (Emphasis added).

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38.

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

Song Stories for the Sunday School bears a copyright notice reading

“Copyright 1899 by Clayton F. Summy Co.”
39.

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

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School, Summy Co. owned the rights to both the songbook as a compilation and the

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individual songs published therein, including Good Morning to All.

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40.

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

for the Sunday School.
41.

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

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Birthday to You had not been fixed in a tangible medium of expression, the public

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began singing Happy Birthday to You no later than the early 1900s.

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42.

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

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Indiana School Journal, the article entitled “First Grade Opening Exercises”

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described children singing the words “happy birthday to you,” but did not print the

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Song’s lyrics or melody.

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43.

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

Morning to All as an individual musical composition.
44.

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.
45.

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

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publication of Good Morning to All.
46.

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

a True Story, arranged by Mary Stewart, which instructed readers to:

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Sing: “Good-bye to you, good-bye to you, good-bye dear children, good-

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bye to you.” Also: “Good-bye dear teacher.” (From “Song Stories for the

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Sunday-School,” published by Summy & Co.)

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Sing: “Happy Birthday to You.” (Music same as “Good-bye to You.”)
47.

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A239690) with the Copyright Office for Tell Me a True Story.
48.

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

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

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

You.

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

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of Sunday Schools of the Methodist Episcopal Church (“Board of Sunday Schools”)

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in The Elementary Worker and His Work, by Alice Jacobs and Ermina Chester

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Lincoln, as follows:

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Happy birthday to you, Happy birthday to you, Happy birthday, dear John,

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Happy birthday to you. (Sung to the same tune as the “Good Morning”)

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[NOTE: The songs and exercises referred to in this program may be found in

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these books:... “Song Stories for the Sunday School,” by Patty Hill.]

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50.

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

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copyright application (Reg. No. A303752) with the Copyright Office for The

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Elementary Worker and His Work.
51.

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The Elementary Worker and His Work attributed authorship or

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identified the copyrights to many of the works included in the book. Significantly, it

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did not attribute authorship or identify any copyright for the song Happy Birthday to

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You.

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52.

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

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with its limited (not perpetual) 25-year term of incorporation. Summy Co. did not

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extend or renew the 1893 (Reg. No. 45997) or 1907 (Reg. No. 142468) copyrights

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prior to its dissolution.
53.

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Upon information and belief, by 1912, various companies (such as

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Cable Company Chicago) had begun producing unauthorized printings of sheet

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music which included the song known today as Happy Birthday (i.e., the melody of

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Good Morning to You with the lyrics changed to those of Happy Birthday). On

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information and belief, Cable Company Chicago never asserted copyright ownership

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in Happy Birthday.

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54.

On information and belief, in or before 1922, pursuant to authority granted to

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it by Patty or Jessica Hill, Summy Co. authorized The Cable Company

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(Chicago) (“Cable Co.”) to publish the music and lyrics to Happy Birthday to

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You. In 1922, pursuant to that authority, Cable Co. published the revised

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fourth edition of The Everyday Song Book with the music and lyrics to

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Happy Birthday to You, including the following note: “Special permission

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through courtesy of The Clayton F. Summy Co.” The Cable Company

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registered a copyright for the fourth edition of The Everyday Song Book in

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1921, which it did not renew. The publication of The Everyday Song Book in

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1922 was without a copyright notice.

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55.

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Copyright History of Good Morning to All
56.

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

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to the original Song Stories for the Kindergarten, Song Stories for the Sunday

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School, and Good Morning to All were vested solely in their proprietor, Summy Co.

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57.

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

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to the revised Song Stories for the Kindergarten were vested solely in their

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proprietor, Summy Co.

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58.

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

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

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16, 1921. The original Song Stories for the Kindergarten, including the song Good

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Morning to All, became dedicated to public use and fell into the public domain by

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no later than that date.

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59.

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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60.

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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61.

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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62.

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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63.

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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64.

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

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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65.

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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66.

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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67.

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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68.

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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69.

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

Sengstack (“Sengstack”) in or around 1930.
70.

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.

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

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corporation.

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

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71.

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

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72.

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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73.

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.
74.

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

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

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

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

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and 1896 copyrights to Good Morning to All. Jessica Hill asserted no claim in that

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

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Morning to All.

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75.

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.
76.

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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

18

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

19

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

20

music.

21

Applications for Copyright for New Musical Arrangement
77.

22

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

23

for Copyright for Republished Musical Composition with new Copyright Matter

24

(Reg. No. E45655) with the Copyright Office for the song Happy Birthday.
78.

25

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

26

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

27

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

28

solo.”

- 13 -

79.

1

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

2

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

3

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

4

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

5

to All.
80.

6

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

7

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

8

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

9

as to the arrangement itself.
81.

10

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

11

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

12

No. E46661) with the Copyright Office for the song Happy Birthday.
82.

13

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

14

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

15

the copyrighted new matter as “arrangement for four hands at one piano.”
83.

16

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

17

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

18

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

19

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

20

to All.

21

84.

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

22

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

23

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

24

as to the arrangement itself.

25

85.

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

26

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

27

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

28

86.

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

- 14 -

1

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

2

copyrighted new matter as “arrangement of second piano part.”
87.

3

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

4

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

5

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

6

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

7

to All.
88.

8

The application did not

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

9

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

10

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

11

as to the arrangement itself.
89.

12

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

13

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

14

No. E47440) with the Copyright Office for the song Happy Birthday.
90.

15

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

16

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

17

the copyrighted new matter as “arrangement for six hands at one piano.”
91.

18

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

19

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

20

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

21

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

22

to All.

23

92.

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

24

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

25

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

26

as to the arrangement itself.

27
28

93.

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

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

- 15 -

1
2

No. E51988) with the Copyright Office for Happy Birthday to You.
94.

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

3

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

4

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

5

Chorus and revised text.”

6

Forman did not write the familiar first verse lyrics to Happy Birthday to You. The

7

sheet music deposited with the application credited Forman only for the

8

arrangement and for the obscure second verse lyrics that lack commercial value, not

9

for the familiar first verse lyrics, and did not credit the Hill Sisters with writing the

10
11

Upon information and belief, Plaintiffs allege that

lyrics to Happy Birthday to You.
95.

For the first time, the lyrics to Happy Birthday to You, including an

12

obscure second verse that lacks commercial value as the revised text, were included

13

on the work registered with the Copyright Office as Reg. No. E51988. However,

14

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

15

lyrics to either of the Hill Sisters and did not claim copyright in the familiar first

16

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

17

Good Morning to All.

18

96.

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

19

expressly limited in scope and neither claimed nor provided copyright protection to

20

the familiar lyrics to Happy Birthday to You. If and to the extent the work registered

21

with the Copyright Office as Reg. No. E51988 had claimed copyright protection to

22

those familiar lyrics, that work was not eligible for federal copyright protection in

23

that it consisted entirely of work that was common property and contained no

24

original authorship, except as to the sheet music arrangement itself.

25

97.

Based upon information and belief, the work registered as Reg. No.

26

E51988 was not eligible for federal copyright protection because Summy Co. III did

27

not have authorization from the author to publish any part of that work except as to

28

the arrangement and the obscure second verse.

- 16 -

1

98.

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

2

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

3

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

4

99.

In that additional December 1935 Application for Copyright, Summy

5

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

6

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

7

Upon information and belief, Plaintiffs allege that Orem did not write the familiar

8

lyrics to Happy Birthday to You. Upon information and belief, Plaintiffs also allege

9

that the sheet music deposited with the application did not credit either Orem or the

10

Hill Sisters for writing the lyrics to Happy Birthday to You.

11

100. Some lyrics to Happy Birthday to You may have been included on the

12

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

13

additional December 1935 Application for Copyright did not attribute authorship of

14

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

15

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

16

or in combination with the melody of Good Morning to All.

17

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

18

expressly limited in scope and neither claimed nor provided copyright protection to

19

the familiar lyrics to Happy Birthday to You. If and to the extent the work registered

20

with the Copyright Office as Reg. No. E51990 had claimed copyright protection to

21

those familiar lyrics, that work was not eligible for federal copyright protection in

22

that it consisted entirely of information that was common property and contained no

23

original authorship, except as to the sheet music arrangement itself.

24

102. Based upon information and belief, the work registered as Reg. No.

25

E51990 was not eligible for federal copyright protection because Summy Co. III did

26

not have authorization from the author to publish any part of that work except as to

27

the arrangement.

28

103. Based upon information and belief, in or about February, 1938, Summy

- 17 -

1

Co. III purported to grant to ASCAP the right to license Happy Birthday to You for

2

public performances and to collect fees for such use on behalf of Summy Co. III.

3

ASCAP thus began working as agent for Summy Co. III in collecting fees for

4

Summy Co. III for licensing Happy Birthday to You.
104. On or about June 8, 1942, Patty Hill and Jessica Hill assigned all of

5
6

their interest in the 1893, 1896, 1899 and 1907 copyrights to The Hill Foundation.

7

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

8

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

9

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

10

the royalties received by Summy Co. III for the licensing of Happy Birthday to You.

11

The Hill Foundation asserted claims under the 1893, 1896, 1899, and 1907

12

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

13

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

14

to All.

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

Good Morning to All.

23

107. Despite the filing of at least four prior cases in the Southern District of

24

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

25

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

26

All.

27
28

108. In or about 1957, Summy Co. III changed its name to Summy-Birchard
Company.

- 18 -

1

109. In 1962, Summy Co. III (renamed as Summy-Birchard Company) filed

2

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

3

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

4

specifically and expressly confined to the musical arrangements.

5

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

6

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

7

write the familiar first verse lyrics to Happy Birthday to You or the combination of

8

those lyrics with the melody of Good Morning to All, and neither Summy Co. III nor

9

Defendants have claimed otherwise.

10

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

11

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

12

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

13

Morning to All, and neither Summy Co. III nor Defendants have claimed otherwise.

14

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

15

and was acquired by Warner/Chappell in or about 1998. On information and belief,

16

this entity now operates as “Summy Birchard, Inc.” – currently a subsidiary of

17

Warner/Chappell and Warner/Chappell’s co-defendant herein.

18

Happy Birthday to You – 100 Years Later

19
20
21
22

113. According to a 1999 press release by ASCAP, Happy Birthday to You
was the most popular song of the 20th Century.
114. The 1998 edition of the Guinness Book of World Records identified
Happy Birthday to You as the most recognized song in the English language.

23

115. Defendant Warner/Chappell currently claims it owns the exclusive

24

copyright to Happy Birthday to You based on the piano arrangements that Summy

25

Co. III published in 1935.

26

116. ASCAP provides non-dramatic public performance licenses to bars,

27

clubs, websites, and many other venues.

28

licensee the right to publicly perform any or all of the over 8.5 million songs in

- 19 -

ASCAP “blanket licenses” grant the

1

ASCAP’s repertory in exchange for an annual fee. The non-dramatic public

2

performance license royalties are distributed to ASCAP members based on surveys

3

of performances of each ASCAP repertory song across different media. As an

4

ASCAP member and assignee of the copyrights in Happy Birthday to You,

5

Defendant Warner/Chappell obtains a share of blanket license revenue that would

6

otherwise be paid to all other ASCAP members, in proportion to their songs’ survey

7

shares.
Plaintiff GMTY’s Use of Happy Birthday to You

8
9
10

115. Plaintiff GMTY is producing a documentary movie, tentatively titled
Happy Birthday, about the song Happy Birthday to You.

11
12

116. In one of the proposed scenes to be included in Happy Birthday, the
song Happy Birthday to You is to be sung.

13
14

117. During the production process, plaintiff GMTY learned that defendant
Warner/Chappell claimed exclusive copyright ownership to Happy Birthday to You.

15

118. Accordingly, in September 2012, plaintiff requested a quote from

16

Warner/Chappell for a synchronization license to use Happy Birthday to You from

17

Warner/Chappell’s website.

18

119. On or about September 18, 2012, defendant Warner/Chappell

19

responded to plaintiff GMTY’s inquiry by demanding that GMTY pay it the sum of

20

$1,500 and enter into a synchronization license agreement to use Happy Birthday to

21

You.

22

120. On or about March 12, 2013, defendant Warner/Chappell again

23

contacted plaintiff GMTY and insisted that GMTY was not authorized to use Happy

24

Birthday to You unless it paid the licensing fee of $1,500 and entered into the

25

synchronization license that Warner/Chappell demanded.

26

121. Because defendant Warner/Chappell notified plaintiff GMTY that it

27

claimed exclusive copyright ownership of Happy Birthday to You, GMTY faced a

28

statutory penalty of up to $150,000 under the Copyright Act if it used the song

- 20 -

1

without Warner/Chappell’s permission if Warner/Chappell, in fact, owned the

2

copyright that it claimed.

3

122. Faced with a threat of substantial penalties for copyright infringement,

4

on or about March 26, 2013, plaintiff GMTY was forced to and did pay defendant

5

Warner/Chappell the sum of $1,500 for a synchronization license and, on or about

6

April 24, 2013, GMTY was forced to and did enter into the synchronization license

7

agreement to use Happy Birthday to You.

8

Plaintiff Siegel’s Use of Happy Birthday to You

9
10
11

123. BIG FAN produced a movie titled Big Fan.
124. In one of the scenes in Big Fan, the familiar lyrics of the song Happy
Birthday to You was sung by the actors.

12

125. (a)

In the early summer of 2009, after filming was complete but

13

before Big Fan was released, BIG FAN retained the services of a music

14

supervisor to secure the rights to all the music that was used in the movie.

15

(b)

The music supervisor identified which music was copyrighted,

16

and advised BIG FAN that it would have to obtain a license from

17

Warner/Chappell and pay a fee to Warner/Chappell to perform Happy

18

Birthday to You in the movie because Warner/Chappell claimed to own

19

the exclusive copyright to the Song.

20

(c)

21

producer regarding the copyright claim by Warner/Chappell, BIG FAN

22

reasonably believed that Warner/Chappell owned the copyright to

23

Happy Birthday to You, and would have to obtain a synchronization

24

license from and pay a fee to Warner/Chappell to use the Song in the

25

movie.

Reasonably relying upon the information provided by the music

26

126. Accordingly, in July 2009, BIG FAN requested that the music

27

supervisor obtain a quote from Warner/Chappell for a Synchronization License to

28

use Happy Birthday to You in Big Fan.

- 21 -

1

127. On or about July 20, 2009, Defendant Warner/Chappell responded to

2

the music supervisor by demanding that BIG FAN pay it the sum of $3,000 and

3

enter into a synchronization license for use of Happy Birthday to You.

4

128. Because Defendant Warner/Chappell notified BIG FAN through the

5

music supervisor that it claimed exclusive copyright ownership of Happy Birthday

6

to You, BIG FAN faced a statutory penalty of $150,000 under the Copyright Act if

7

BIG

8

Warner/Chappell, in fact, owned the copyright that it claimed.

FAN

used

the

Song

without

Warner/Chappell’s

permission

and

9

129. On July 20, 2009, Plaintiff Siegel as President of BIG FAN executed

10

the synchronization license with Warner/Chappell and agreed to pay $3,000 based

11

upon Big Fan’s theatrical release.

12

130. (a)

Faced with a threat of substantial penalties for copyright

13

infringement, on or about September 1, 2009, BIG FAN was forced to, and did, pay

14

defendant Warner/Chappell the sum of $3,000 pursuant to the synchronization

15

license.
(b)

16

BIG FAN, the music producer it hired, and Plaintiff Siegel did

17

not know, and had no reason to know, that Warner/Chappell did not own any

18

copyright to Happy Birthday to You, that the rights Warner/Chappell could

19

claim were limited just to the piano arrangements or the obscure second verse

20

of the Song (which was not performed in Big Fan), or that any copyright

21

other than that was invalid or expired.
(c)

22

BIG FAN, the music producer it hired, and Plaintiff Siegel had

23

no reason to question Warner/Chappell’s claim to own the copyright to the

24

Song.

25

(d)

Warner/Chappell did not specify which registration(s) or

26

renewal(s) thereof under which it claimed a copyright to Happy Birthday to

27

You, and thus BIG FAN, the music producer it hired, and Plaintiff Siegel

28

- 22 -

1

could not investigate Warner/Chappell’s claim to determine whether Warner

2

Chappell owned the copyright it claimed or whether that copyright was valid.

3

(e)

The commencement of this action on or about June 13, 2013,

4

was widely reported in the press. Prior to the date when the press first

5

reported the claims asserted herein, no one in the position of BIG FAN, the

6

music producer hired by BIG FAN, or Plaintiff Siegel would know, or have

7

any reason to know, that Warner/Chappell’s copyright claim for Happy

8

Birthday to You was in doubt.

9

(f)

Plaintiff Siegel learned of the commencement of this action on or

10

about June 14, 2013, from the press reports. Before then, BIG FAN, the

11

music producer it hired, and Plaintiff Siegel did not know, and had no reason

12

to know, that Warner/Chappell’s copyright claim for Happy Birthday to You

13

had been disputed by anyone or was in doubt.

14

(g)

Shortly thereafter, on or about June 19, 2013, and significantly

15

less than three years after he knew or reasonably could or should have known

16

that Warner/Chappell does not own a copyright to the Song, or that its

17

copyright is not valid, plaintiff Siegel commenced a separate class action in

18

Los Angeles County pursuant to the terms of the Synchronization License.

19

Rupa’s Performance of Happy Birthday to You

20

131. Plaintiff Rupa d/b/a RTAF recorded the song Happy Birthday to You at

21

a live show in San Francisco, to be released as part of a “live” album. She learned

22

that defendant Warner/Chappell claimed exclusive copyright ownership to Happy

23

Birthday to You, including the right to issue mechanical licenses.

24

132. Section 115 of the Copyright Act provides for compulsory licenses for

25

the distribution of phonorecords and digital phonorecord deliveries (i.e., Web-based

26

“downloads”) of musical compositions. Failure to obtain such a license prior to

27

distribution of a cover version of a song constitutes a copyright infringement subject

28

to the full remedies of the Copyright Act.

- 23 -

1

133. Accordingly, on June 17, 2013, Plaintiff Rupa provided a Notice of

2

Intention to Obtain Compulsory License to Warner/Chappell and paid

3

Warner/Chappell $455 for a mechanical license for the reproduction and distribution

4

of 5,000 copies of the Song.

5

Plaintiff Majar Use of Happy Birthday to You

6

134. (a) Plaintiff Majar produced the Film entitled “No Subtitles Necessary:

7

László & Vilmos.” The Film follows the lives of renowned cinematographers

8

László Kovacs (“Kovacs”) and Vilmos Zsigmond (“Zsigmond”) from

9

escaping the 1956 Soviet invasion of Hungary to the present day.

10

(b)

Plaintiff Majar wished to use the Happy Birthday to You in the

11

opening scene of the Film, wherein Zsigmond and others sang the Song to

12

Kovacs in a celebration of Kovacs’ life and the friendship of the two, thereby

13

setting the tone for the Film.

14

(c)

In or around the fall of 2008, during production of the Film,

15

Plaintiff Majar learned from the music clearance supervisor working on the

16

Film that defendant Warner/Chappell claimed exclusive copyright ownership

17

to Happy Birthday to You, including for purposes of issuing synchronization

18

licenses, and that if Majar wished to include the Song in the Film, a license

19

would have to be procured and a fee be paid to Warner/Chappell. The

20

director of the Film, James Chressanthis, spoke to experienced producers in

21

the industry, who confirmed that it was common knowledge within the

22

entertainment industry that Warner/Chappell widely claimed exclusive

23

copyright ownership of the Song.

24

(d)

Accordingly, upon making the final determination to include use

25

of the Song in the Film, Plaintiff Majar proceeded to obtain a license for the

26

Song from Warner/Chappell.

27

Plaintiff Majar as the exclusive owner of the copyright in the Song (although

28

it did not specify which registration number(s) or renewal number(s) under

Indeed, Warner/Chappell held itself out to

- 24 -

1

which it claimed to own a copyright). Thus, on or about October 29, 2009,

2

Plaintiff Majar paid to defendant Warner/Chappell the sum of $5,000 for a

3

synchronization license to use Happy Birthday in the Film. At the time,

4

Plaintiff Majar did not question and had no reason to question

5

Warner/Chappell’s claim of copyright ownership. Moreover, Plaintiff Majar

6

is informed and believes that Warner/Chappell continued to hold itself out as

7

the exclusive copyright owner of the Song for years after Majar licensed it.

8

(e)

Because

Defendant

Warner/Chappell

claimed

exclusive

9

copyright ownership of Happy Birthday to You, Plaintiff Majar faced a

10

statutory penalty of $150,000 under the Copyright Act, 17 U.S.C. § 101 et

11

seq., if it used the Song without Warner/Chappell’s permission and

12

Warner/Chappell, in fact, owned the copyright that it claimed.

13

(f)

Plaintiff Majar did not question, and had no reason to question,

14

on October 29, 2009 (and continuing thereafter), Warner/Chappell’s claim to

15

own the copyright to the Song. Moreover, Plaintiff Majar did not know, and

16

had no reason to know, on October 29, 2009 (and continuing thereafter), that

17

Warner/Chappell’s copyright claim for Happy Birthday to You had been

18

disputed by anyone.

19

(g)

Plaintiff Majar only first learned that Warner/Chappell’s claim of

20

exclusive copyright ownership in the Song was subject to dispute when news

21

of the same was published in a New York Times article on June 13, 2013.

22

Plaintiff Majar contacted counsel and joined as a plaintiff in this action

23

promptly thereafter.

24

Delayed Discovery, Concealment of the Truth Regarding the Limited

25

Copyright, and Equitable Tolling

26
27

135. (a)

In or about 2012, Plaintiff GMTY’s principal learned of a

dispute regarding Defendants’ claim to own the copyright to Happy Birthday to You.

28

- 25 -

1

(b)

On March 12, 2013, however, Defendants informed Plaintiff

2

GMTY’s principal in writing that Plaintiff GMTY was not authorized to use

3

the Song. Before licensing Happy Birthday to You from Defendants and

4

paying a synchronization license fee to Defendants, Plaintiff GMTY did not

5

know, and in the exercise of reasonable care, could not have known, that

6

Defendants’ copyrights in fact did not cover the Song’s familiar lyrics.

7

(c)

Plaintiff GMTY thereafter discovered additional facts sufficient

8

to challenge whether Defendants’ copyrights cover the Song’s familiar lyrics.

9

136. (a)

Before licensing Happy Birthday to You from Defendants and

10

paying fees for synchronization licenses to Defendants, Plaintiff Siegel and BIG

11

FAN did not know, and in the exercise of reasonable care, could not have known,

12

that Defendants’ copyrights in fact did not cover the Song’s familiar lyrics.

13

(b)

After the commencement of this action in 2013, Plaintiff Siegel

14

and BIG FAN thereafter discovered additional facts sufficient to challenge

15

whether Defendants’ copyrights cover the Song’s familiar lyrics.

16

137. (a)

Before licensing Happy Birthday to You from Defendants and

17

paying fees for a mechanical license to Defendants, Plaintiff Rupa did not know,

18

and in the exercise of reasonable care, could not have known, that Defendants’

19

copyrights in fact did not cover the Song’s familiar lyrics.

20

(b)

Plaintiff Rupa thereafter discovered additional facts sufficient to

21

challenge whether Defendants’ copyrights cover the Song’s familiar lyrics.

22

138. (a)

Before licensing Happy Birthday to You from Defendants and

23

paying fees for synchronization licenses to Defendants, Plaintiff Majar did not

24

know, and in the exercise of reasonable care, could not have known, that

25

Defendants’ copyrights in fact did not cover the Song’s familiar lyrics.

26

(b)

After the commencement of this action in 2013, Plaintiff Majar

27

thereafter discovered additional facts sufficient to challenge whether

28

Defendants’ copyrights cover the Song’s familiar lyrics.

- 26 -

1

139. At all times relevant hereto, Defendants and their predecessors-in-

2

interest consistently and uniformly insisted they were the owner of the copyright to

3

Happy Birthday to You.

4

140. At all times relevant hereto, Defendants and their predecessors-in-

5

interest consistently and uniformly demanded that all would-be users of Happy

6

Birthday to You obtain licenses or permission from them to use, perform, or publish

7

the Song.

8

141. At all times relevant hereto, Defendants and their predecessors-in-

9

interest consistently and uniformly demanded payment for the right to use, perform,

10

or publish Happy Birthday to You from all would-be users of the Song under and by

11

virtue of their claim of copyright ownership alleged herein.

12

142. At all times relevant hereto, Defendants or their predecessors-in-

13

interest have been in possession of, or have known the terms of: (a) the early 1890s

14

assignment from Patty Hill and Mildred Hill to Summy Co., which related only to

15

Good Morning to All; (b) the 1934 and 1935 assignment from Jessica Hill to Summy

16

Co. of only the rights to various piano arrangements to the musical composition

17

Good Morning to All; and (c) the 1944 assignment from Patty Hill and Jessica Hill

18

via the Hill Foundation to Summy Co. Those assignments allowed Defendants and

19

their predecessors-in-interest to know that they did not acquire any rights to the

20

Happy Birthday to You lyrics from Patty Hill, Jessica Hill, or the Hill Foundation.

21

143. For that reason, among others, knowing that the 1935 copyrights

22

E51988 and E51990 did not cover the Song’s familiar lyrics, when Summy Co.

23

commenced three lawsuits alleging copyright infringement related to Happy

24

Birthday to You after acquiring whatever limited rights it ever obtained from the

25

Hill sisters and the Hill Foundation, it did not even mention either of the 1935

26

copyrights. Those assignments were not publicly disclosed at any time prior to the

27

commencement of this action.

28

- 27 -

1

144. At all times relevant hereto, Defendants and their predecessors-in-

2

interest were told repeatedly, and knew or should have known, that: (a) neither the

3

Hill sisters nor the Hill Foundation transferred to Summy Co. any rights to the

4

Happy Birthday to You lyrics; (b) at most, Summy Co. obtained from the Hill sisters

5

or the Hill Foundation only limited rights to various piano arrangements of the

6

melody shared by Good Morning to All and Happy Birthday to You; (c) the

7

copyrights to that common melody expired no later than September 3, 1949, by

8

which date the melody entered the public domain; (d) the 1935 work-for-hire

9

copyrights are limited to only the new work added by Summy Co.’s employees,

10

Forman and Orem; (e) Summy’s employees, Forman and Orem, did not write the

11

familiar Happy Birthday to You lyrics; and (f) the 1935 work-for-hire copyrights did

12

not cover the Happy Birthday to You lyrics.

13

145. For example, in or about 1934, in a motion to dismiss Hill v. Harris,

14

Eq. No. 78-350, defendants Irving Berlin and Sam Harris asserted that the original

15

copyright to Good Morning to All was not properly renewed and therefore had

16

lapsed in 1921. In the motion to dismiss, those defendants also asserted that the

17

complaint in that action failed to allege that Summy Co. was “the proprietor of the

18

composition in question,” and thus could not copyright it.

19

146. On or about April 18, 1945, the defendant answered the complaint in

20

Clayton F. Summy Co. v. Louis Marx & Co., No. 30-285 (S.D.N.Y.), and asserted

21

that the original copyright to Good Morning to All was not properly renewed and

22

therefore had lapsed in 1921.

23

147. Upon information and belief, Defendants’ predecessor-in-interest

24

received an inter-office communication from Universal City Studios on or about

25

July 1, 1964, stating that the copyright asserted and relied upon by Defendants and

26

their predecessors “covers only the particular [piano] arrangement” and that “no one

27

could claim copyright in the new [Happy Birthday] lyrics.” The substance of that

28

- 28 -

1

communication was not publicly disclosed prior to the commencement of this

2

action.

3

148. Likewise, upon information and belief, beginning in 1963, in meetings

4

with Defendants’ predecessor-in-interest and in correspondence with the Harry Fox

5

Agency (“Fox”), as agent for Defendants’ predecessor-in-interest Summy Co.

6

(which is in the possession of Defendants and their predecessors but which was

7

never publicly disclosed), Walt Disney Productions (“Disney”) disputed the scope

8

and ownership of the copyright to Happy Birthday to You.

9

149. In an October 18, 1963, letter, to Fox, as agent for Summy Co.,

10

Disney’s Music Manager detailed their copyright research of Happy Birthday to

11

You, beginning with Mildred and Patty Hill’s publication of Good Morning to All in

12

Song Stories for the Kindergarten, and noted that “no one knows who first changed

13

the words “good morning” to ‘happy birthday.” Disney’s conclusion was that “the

14

song together with the lyrics are now in the public domain.” [WC1411-

15

12/CONFIDENTIAL] The substance of that communication was not disclosed to

16

the public prior to the commencement of this action.

17

150. On or about May 12, 1964, in a letter to the Fox, as agent for Summy

18

Co., Disney’s Music Manager asserted that “‘HAPPY BIRTHDAY TO YOU’ is

19

definitely in the public domain.” [WC 1416/CONFIDENTIAL] The substance of

20

that communication was not disclosed to the public prior to the commencement of

21

this action.

22

151. In a letter to counsel for Defendants’ predecessor Summy Co. dated

23

November 6, 1964, Disney offered $1,000 for five uses of Happy Birthday to You

24

“not in acknowledgment that there is a protected right in [the Song] but to pass over

25

that question and get a whitewash from your client.” [WC1414/CONFIDENTIAL]

26

The substance of that communication was not disclosed to the public prior to the

27

commencement of this action.

28

152. On December 13, 1971, Disney’s counsel wrote to Fox, as agent for

- 29 -

1

Summy Co., and reiterated its prior offer to pay $250 as a “tribute” for each use of

2

Happy Birthday to You for “the simple reason that although we firmly believe that

3

we would prevail in any litigation” that “business practices dictates that a small

4

payment is better than expensive litigation.”

5

having “recontacted various copyright experts,” Disney was “willing once and for

6

all to fight this matter in the event you are asking an amount greater than previously

7

paid by us.” [WC1415/CONFIDENTIAL] The substance of that communication

8

was not disclosed to the public prior to the commencement of this action.

Disney’s counsel also noted that

9

153. In a letter to Fox and Defendants’ predecessor-in-interest Summy-

10

Birchard Music dated May 11, 1983, Disney’s Music Manager responded to a

11

request from Fox, on behalf of Summy-Birchard Music, for a $5,000 fee for a ten-

12

year license of Happy Birthday to You for an exhibit at the Horizons Pavilion at

13

EPCOT by offering a “tribute payment” of just $250 to use the Song for a decade.

14

Disney’s Music Manager stated that the original song Good Morning to All and the

15

“alleged adaptation,” i.e., Happy Birthday to You, “are both in the public domain

16

around the world,” but offered the nominal sum “only to avoid litigation to prove

17

that they are free to use.” [WC1422-23/CONFIDENATIAL] The substance of that

18

communication was not disclosed to the public prior to the commencement of this

19

action.

20

154. At various times relevant hereto, Defendants and their predecessors-in-

21

interest claimed that Summy Co.’s employee Orem may have written the familiar

22

Happy Birthday to You lyrics, either alone, together, or with Mildred or Patty Hill.

23

155. At various times relevant hereto, Defendants and their predecessors-in-

24

interest claimed that Mildred Hill wrote the familiar Happy Birthday to You lyrics,

25

either alone or together with Patty Hill or with Summy Co.’s employee Orem.

26

156. At all times relevant hereto, Defendants and their predecessors-in-

27

interest concealed the fact that Summy Co.’s employees, Forman and Orem, did not

28

- 30 -

1

write the familiar Happy Birthday to You lyrics, either alone, together, or with

2

Mildred or Patty Hill.

3

157. At various times relevant hereto, Defendants and their predecessors-in-

4

interest encouraged others to conceal the fact that Summy Co.’s employees, Forman

5

and Orem, did not write the familiar Happy Birthday to You lyrics, either alone,

6

together, or with Mildred or Patty Hill.

7

158. At all times relevant hereto, Defendants and their predecessors-in-

8

interest concealed the fact that the 1935 copyrights covered only the piano

9

arrangements composed by Summy Co.’s employees-for-hire and did not cover the

10

Happy Birthday to You lyrics.

11

159. At various times relevant hereto, Defendants and their predecessors-in-

12

interest encouraged others to conceal the fact that the 1935 copyrights covered only

13

the piano arrangements composed by Summy Co.’s employees-for-hire and did not

14

cover the Happy Birthday to You lyrics.

15

160. In part as a result of the actions of Defendants and their predecessors-

16

in-interest alleged herein, Plaintiffs and all other users of Happy Birthday to You did

17

not know, had no reason to know, and in the exercise or reasonable care could not

18

know that Defendants and their predecessors-in-interest did not own a copyright to

19

the Song itself, but rather only to two piano arrangements composed by Summy

20

Co.’s employees for hire.

21

161. In part as a result of the misrepresentations and concealment of material

22

fact alleged above, and in part as a result of the complexity of the historical record

23

surrounding the song, in the exercise of reasonable care, Plaintiffs did not know, had

24

no reason to know, and in the exercise of reasonable care could not know that

25

Defendants did not own any copyright to the familiar Happy Birthday to You lyrics.

26

162. In part as a result of the misrepresentations and concealment of material

27

fact alleged above, and in part as a result of the complexity of the historical record

28

surrounding the song, users of the Song did not know, had no reason to know, and in

- 31 -

1

the exercise of reasonable care could not know that Defendants and their

2

predecessors-in-interest did not own any copyright to the familiar Happy Birthday to

3

You lyrics.

4

CLASS ALLEGATIONS

5

163. Plaintiffs GMTY, Siegel, Rupa, and Majar bring this action pursuant to

6

Rule 23(a)-(b) of the Federal Rules of Civil Procedure as a class action on behalf of

7

themselves and all others similarly situated for the purpose of asserting the claims

8

alleged in this Consolidated Fourth Amended Complaint on a common basis.

9

164. The proposed Class is comprised of:

10

All persons or entities (excluding Defendants’ directors, officers,

11

employees, and affiliates) who entered into a license with

12

Defendants or their predecessors-in-interest, or paid Defendants or

13

their predecessors-in-interest, directly or indirectly, a licensing fee

14

for the song Happy Birthday to You at any time since at least

15

September 3, 1949 (the latest date on which the copyright to Good

16

Morning to All expired), until Defendants’ conduct as alleged

17

herein has ceased.

18

165. Although Plaintiffs GMTY, Siegel, Rupa, and Majar do not know the

19

exact size of the Class or the identities of all members of the Class, upon

20

information and belief that information can be readily obtained from the books and

21

records of defendant Warner/Chappell. Plaintiffs believe that the Class includes

22

thousands of persons or entities who are widely geographically disbursed. Thus, the

23

proposed Class is so numerous that joinder of all members is impracticable.

24
25
26

166. The claims of all members of the Class involve common questions of
law and fact including:
a.

to public use;

27
28

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

b.

whether the 1935 copyrights claimed by Warner/Chappell cover the

- 32 -

popular lyrics to Happy Birthday to You;

1
2

c.

whether Defendants and their predecessors-in-interest knew or should

3

have known that the 1935 copyrights did not cover the popular Happy

4

Birthday to You lyrics;

5

d.

whether Defendants and their predecessors-in-interest misrepresented

6

that the 1935 copyrights covered the familiar Happy Birthday to You

7

lyrics;

8

e.

Defendants and their predecessors-in-interest concealed the fact that the

9

1935 copyrights covered only the piano arrangements composed by

10

Summy Co.’s employees-for-hire, not the familiar Happy Birthday to

11

You lyrics;

12

f.

whether, in the exercise of reasonable care, Plaintiffs and the other

13

members of the Class knew or could have known that Defendants did

14

not own any copyright to the familiar Happy Birthday to You lyrics;

15

g.

whether the commencement of any applicable statute of limitations was
tolled and, if so, for how long;

16
17

h.

whether the 1935 copyrights claimed by Warner/Chappell are valid;

18

i.

whether Warner/Chappell is the exclusive owner of the copyright to

19

Happy Birthday to You and is thus entitled to all of the rights conferred

20

in 17 U.S.C. § 102;

21

j.

Happy Birthday to You;

22
23

whether Warner/Chappell has the right to collect fees for the use of

k.

whether Warner/Chappell has violated the law by demanding and

24

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

25

a valid copyright to the song; and

26

l.

whether Warner/Chappell is required to return unlawfully obtained

27

payments to plaintiffs GMTY, Siegel, Rupa and Majar and the other

28

members of the Class and, if so, what amount is to be returned.

- 33 -

1
2

167. With respect to Claims III and VII, the common questions of law and
fact predominate over any potential individual issues.

3

168. Plaintiffs GMTY, Siegel, Rupa and Majar’s claims are typical of the

4

claims of all other members of the Class and plaintiffs GMTY, Siegel, Rupa and

5

Majar’s interests do not conflict with the interests of any other member of the Class,

6

in that plaintiffs and the other members of the Class were subjected to the same

7

unlawful conduct.

8

169. Plaintiffs GMTY, Siegel, Rupa and Majar are committed to the

9

vigorous prosecution of this action and have retained competent legal counsel

10

experienced in class action and complex litigation.

11

170. Plaintiffs are adequate representatives of the Class and, together with

12

their attorneys, are able to and will fairly and adequately protect the interests of the

13

Class and its members.

14

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

15

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

16

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

17

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

18

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

19

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

20

would unduly burden the courts.

21
22

173. Plaintiffs GMTY, Siegel, Rupa and Majar anticipate no difficulty in the
management of this litigation as a class action.

23

FIRST CLAIM FOR RELIEF

24

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

25

(On Behalf Of Plaintiffs And The Class)

26

(Against All Defendants)

27
28

174. Plaintiffs repeat and reallege paragraphs 1 through 173 set forth above
as though they were fully set forth herein.

- 34 -

1

175. Plaintiffs bring these claims individually on behalf of themselves and

2

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

3

Civil Procedure.

4

176. Plaintiffs seek adjudication of an actual controversy arising under the

5

Copyright Act, 17 U.S.C. §§ 101 et seq., in connection with Defendants’ purported

6

copyright claim to Happy Birthday to You. Plaintiffs seek the Court’s declaration

7

that the Copyright Act does not bestow upon Warner/Chappell and/or SBI the rights

8

it has asserted and enforced against plaintiffs and the other members of the Class.

9

This is because either: (a) the 1935 registrations E51988 and E51990, under which

10

Warner/Chappell claims those copyrights, and the resulting copyrights do not

11

purport to cover and do not cover the familiar lyrics to Happy Birthday to You, but

12

instead are limited just to the particular arrangements written by Forman or Orem

13

(and, in the case of E51988, the obscure second verse which has no commercial

14

value); or (b) if and to the extent that those copyrights purport to cover the familiar

15

lyrics to Happy Birthday to You, the copyrights are invalid or have expired.

16

177. Defendants assert that they are entitled to mechanical and performance

17

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

18

phonorecords and digital downloads of the composition Happy Birthday to You,

19

under threat of a claim of copyright infringement.

20

178. Defendant Warner/Chappell demanded that plaintiff GMTY enter into

21

a synchronization license agreement to use Happy Birthday to You and pay

22

Warner/Chappell the sum of $1,500 for that synchronization license based upon its

23

claim of copyright ownership. Warner/Chappell’s demand was coercive in nature,

24

and GMTY’s entering into the license agreement and payment of $1,500 was

25

involuntary.

26

179. Plaintiff GMTY’s claim presents a justiciable controversy because

27

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

28

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

- 35 -

1

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

2

that plaintiff GMTY would be exposed to substantial statutory penalties under the

3

Copyright Act had it failed to enter such an agreement and pay Warner/Chappell the

4

price it demanded.

5

180. Defendant Warner/Chappell demanded that BIG FAN as assignor of

6

plaintiff Siegel enter into the Synchronization License agreement to use Happy

7

Birthday to You and pay Warner/Chappell the sum of $3,000 for that

8

Synchronization

9

ownership. Warner/Chappell’s demand was coercive in nature, and BIG FAN’S

10

License

based

upon

its

claim

of

copyright

entering into the Synchronization License and payment of $3,000 was involuntary.

11

181. Plaintiff Siegel’s claim presents a justiciable controversy because

12

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

13

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

14

Big Fan, was the involuntary result of Warner/Chappell’s assertion of a copyright

15

and the risk that plaintiff Siegel would be exposed to substantial statutory penalties

16

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

17

Warner/Chappell the price it demanded, but then used Happy Birthday to You in its

18

film anyway.

19

182. Plaintiff Rupa’s claim presents a justiciable controversy because

20

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

21

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

22

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

23

the risk that plaintiff Rupa would be exposed to substantial statutory penalties under

24

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

25

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

26

for the mechanical license anyway.

27

183. Defendants demanded that Plaintiff Majar pay to Defendants a

28

licensing fee in the sum of $5,000 pursuant to Defendants’ claim of copyright

- 36 -

1

ownership, in order for Plaintiff Majar to use Happy Birthday in the Film.

2

Defendants’ demand was coercive in nature and Majar’s agreement to pay the fee

3

was involuntary.

4

184. Plaintiff Majar's claim presents a justiciable controversy because its

5

actual payment of Defendants’ demanded fee to use Happy Birthday in the Film was

6

the involuntary result of Defendants’ assertion of a copyright and the risk that

7

Plaintiff Majar would be exposed to substantial statutory penalties under the

8

Copyright Act had it failed to seek Defendants’ approval to use the Song and/or

9

failed to pay Defendants’ demanded fee.

10

185. Plaintiffs seek the Court’s determination as to whether Defendants are

11

entitled to assert ownership of the copyright to Happy Birthday to You against

12

Plaintiffs pursuant to the Copyright Act as Defendants claim, or whether Defendants

13

are wielding a false claim of ownership to inhibit Plaintiffs’ use and enjoyment (and

14

the public’s use and enjoyment) of intellectual property which is rightfully in the

15

public domain.

16

186. If and to the extent that Defendants rely upon the 1893, 1896, 1899, or

17

1907 copyrights for the melody for Good Morning to All, those copyrights expired

18

or were forfeited as alleged herein.

19

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

20

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

21

Good Morning to All, were not renewed by Summy Co. or Summy and accordingly

22

expired in 1921 and 1924, respectively.

23

188. As alleged above, the 1893 copyright to Song Stories for the

24

Kindergarten and the 1899 copyright to Song Stories for the Sunday School, which

25

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

26

were not renewed by Summy Co. before Summy Co. was dissolved in 1920 and

27

accordingly, those copyrights expired in 1927 and 1935, respectively.

28

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

- 37 -

1

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

2

notice of its original 1893 copyright.

3
4

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

5

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

6

Summy Co. III in 1935 (Reg. Nos. E51988 and E51990): (a) do not give

7

Warner/Chappell copyrights to the familiar lyrics to Happy Birthday to You, but

8

instead are limited just to the particular arrangements written by Forman or Orem

9

(and, in the case of E51988, the obscure second verse which has no commercial

10

value); and (b) were not eligible for federal copyright protection because those

11

works did not contain original works of authorship, except to the extent of the piano

12

arrangements themselves.

13

192. The 1934 and 1935 copyrights pertained only to the piano

14

arrangements or the obscure second verse, not to the melody or familiar first verse

15

lyrics of the song Happy Birthday to You.

16

193. The registration certificates for The Elementary Worker and His Work

17

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

18

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

19

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

20

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

21

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

22

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

23

copyright law.

24

195. Plaintiffs therefore request a declaration that:

25

(a)

26

copyright to, or possess the exclusive right to reproduce, distribute, or

27

publicly perform, Happy Birthday To You;

28

(b)

defendant Warner/Chappell and defendant SBI do not own the

if defendant Warner/Chappell and defendant SBI own any

- 38 -

1

copyright to Happy Birthday to You, it is limited to four specific piano

2

arrangements or an obscure second verse that has no commercial value,

3

(c)

4

Warner/Chappell and defendant SBI may own or ever owned are

5

invalid or have expired;

6

(d)

7

exclusive right to demand or grant a license for use of Happy Birthday

8

To You; and

9

(e)

any other copyright to Happy Birthday to You that defendant

defendant Warner/Chappell and defendant SBI do not own the

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

to the public use.

10
11

///

12

///

13

///

14

///

15

///

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 Plaintiffs and the Class)

21

(Against All Defendants)

22
23

196. Plaintiffs repeat and reallege paragraphs 1 through 195 set forth above
as though they were fully set forth herein.

24

197. Plaintiffs bring these claims individually on their own behalf and on

25

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

26

Procedure.

27

198. 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

- 39 -

1

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

2

judgment.”

3

199. Plaintiffs and the other proposed Class members have been harmed,

4

and Defendants have been unjustly enriched, by Defendant Warner/Chappell’s

5

takings.

6
7

200. Plaintiffs seek relief for themselves 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 Defendants Warner/Chappell and SBI from

9

making further representations of ownership of the copyright to Happy

10

Birthday To You;

11

(b)

12

to Defendants, directly or indirectly through its agents, in connection with the

13

purported licenses it granted to Plaintiffs GMTY, Siegel, Rupa and Majar and

14

the other Class members;

15

(c)

16

directly or indirectly through its agents, from plaintiffs and the other Class

17

members in connection with its claim to ownership of the copyright to Happy

18

Birthday to You; and

19

(d)

restitution to Plaintiffs and the other Class members of license fees paid

an accounting for all monetary benefits obtained by Defendants,

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 Plaintiffs and the Class)

24

(Against All Defendants)

25
26

201. Plaintiffs repeat and reallege paragraphs 1 through 173 set forth above
as though they were fully set forth herein.

27

202. Plaintiffs GMTY, Siegel, Rupa, and Majar bring these claims

28

individually on their own behalf, and also on behalf of the Class pursuant to Rule

- 40 -

1

23(b)(3) of the Federal Rules of Civil Procedure.

2

203. As alleged herein, Plaintiffs GMTY, Siegel, Rupa and Majar and the

3

other Class members have paid licensing fees to defendants Warner/Chappell and/or

4

SBI and have therefore suffered injury in fact and have lost money or property as a

5

result of Defendants’ conduct.

6

204. California’s Unfair Competition Laws, Business & Professions Code

7

§§ 17200 et seq. (“UCL”), prohibit any unlawful or unfair business act or practice.

8

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

9

206. Defendants’

actions,

claims,

nondisclosures,

and

misleading

10

statements, as alleged in this Complaint, were unfair, false, misleading, and likely to

11

deceive the consuming public within the meaning of UCL §§ 17200, 17500.

12

207. The conduct of Defendants in exerting control over exclusive copyright

13

ownership to Happy Birthday to You to extract licensing fees is deceptive and

14

misleading because neither Warner/Chappell nor SBI own the rights to Happy

15

Birthday to You.

16

208. Plaintiffs and the other members of the Class have, in fact, been

17

deceived as a result of their reasonable reliance upon Defendants’ materially false

18

and misleading statements and omissions, as alleged above.

19

209. As a result of Defendants’ unfair and fraudulent acts and practices as

20

alleged above, Plaintiffs and the other Class members have suffered substantial

21

monetary injuries.

22

210. Plaintiffs and the other Class members reserve the right to allege other

23

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

24

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

25
26

211. As a result of its deception, Defendants Warner/Chappell and SBI have
been able to reap unjust revenue and profit.

27

212. Upon information and belief, Defendants have collected and continue

28

to collect at least $2 million per year in licensing fees for Happy Birthday to You.

- 41 -

1
2
3

Therefore, the amount in controversy exceeds $5 million in the aggregate.
213. Unless restrained and enjoined, Defendants will continue to engage in
the above-described conduct. Accordingly, injunctive relief is appropriate.

4

214. Plaintiffs, individually on their own behalf and on behalf of the other

5

members of the Class, seek restitution and disgorgement of all money obtained from

6

Plaintiffs and the other members of the Class, collected as a result of unfair

7

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

8

§ 17203.

9

FOURTH CLAIM FOR RELIEF

10

BREACH OF CONTRACT

11

(On Behalf of Plaintiffs and the Class)

12

(Against All Defendants)

13

187. Plaintiffs repeat and reallege each and every foregoing allegation as

14

though fully set forth herein.

15

188. Plaintiffs

entered

into

license

agreements

with

Defendant

16

Warner/Chappell wherein Warner/Chappell represented and warranted that it and/or

17

its co-Defendant SBI owned the rights to Happy Birthday as licensed therein.

18

189. Plaintiffs are informed and believe that Defendants’ licensing

19

agreements are the same or substantially similar as to all Class members,

20

particularly with respect to Defendants’ claim of ownership of the copyright to

21

Happy Birthday.

22
23

190. Plaintiffs and the Class have satisfied their obligations under each such
licensing agreement with Warner/Chappell.

24

191. As alleged herein, Defendants do not own the copyright interests

25

claimed in Happy Birthday and, as a result of its unlawful and false assertions of the

26

same, Defendants have violated the representations and warranties made in the

27

licensing agreements, thereby materially breaching the licensing agreements.

28

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1
2

192. By reason of the foregoing, Plaintiffs and the Class have been damaged
in an amount to be determined at trial.

3

FIFTH CLAIM FOR RELIEF

4

COMMON LAW FOR MONEY HAD AND RECEIVED

5

(On Behalf of Plaintiffs and the Class)

6

(Against All Defendants)

7
8

193. Plaintiffs repeat and reallege each and every foregoing allegation as
though they were fully set forth herein.

9

194. Within the last four years, Defendants Warner/Chappell and/or SBI

10

became indebted to Plaintiffs and all class members for money had and received by

11

Defendants for the use and benefit of Plaintiffs and class members. The money in

12

equity and good conscience belongs to Plaintiffs and class members.

13

SIXTH CLAIM FOR RELIEF

14

RESCISSION FOR FAILURE OF CONSIDERATION

15

(On Behalf of Plaintiffs and the Class)

16

(Against All Defendants)

17
18
19
20
21
22

195. Plaintiffs repeat and reallege each and every foregoing allegation as
though they were fully set forth herein.
196. Defendants’ purported licenses were worthless and ineffective, and do
not constitute valid consideration.
197. The complete lack of consideration obviates any need for notice to
Defendants.

23

SEVENTH CLAIM FOR RELIEF

24

FALSE ADVERTISING LAWS IN VIOLATION OF

25

CALIFORNIA BUSINESS & PROFESSIONS CODE §§ 17500, ET SEQ.

26

(On Behalf of Plaintiffs and the Class)

27

(Against All Defendants)

28

198. Plaintiffs repeat and reallege each and every foregoing allegation as

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1

though they were fully set forth herein.

2

199. On information and belief, Defendants Warner/Chappell and SBI

3

intended to induce the public to enter into an obligation related to its alleged

4

property, namely the composition Happy Birthday to You.

5

200. Defendants Warner/Chappell and/or SBI publicly disseminated

6

advertising which contained statements which were untrue and misleading and

7

which concerned the composition Happy Birthday to You, for which they

8

improperly sought and received licensing fees. Defendants knew, or in the exercise

9

of reasonable care should have known, that these statements were untrue and

10
11
12

misleading.
201. Plaintiffs and class members have suffered injury in fact and have lost
money as a result of such unfair competition.
PRAYER FOR RELIEF

13
14

WHEREFORE, Plaintiffs GMTY, Siegel, Rupa and Majar on behalf of

15

themselves and the other members of the Class, pray for judgment against

16

Defendants as follows:

17

A.

certifying the Class as requested herein;

18

B.

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

19

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

20

C.

21

asserting any copyright to the song Happy Birthday to You;

22

D.

23

charging or collecting any licensing or other fees for use of the song Happy

24

Birthday to You;

25

E.

26

Warner/Chappell and SBI unlawfully collected from Plaintiffs, the other

27

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

28

You;

permanently enjoining Defendants Warner/Chappell and SBI from
permanently enjoining Defendants Warner/Chappell and SBI from

imposing

a

constructive

trust

- 44 -

upon

the

money

Defendants

1

F.

2

and the other members of the Class all the licensing or other fees they have

3

collected from them, directly or indirectly through its agents, for use of the

4

song Happy Birthday to You, together with interest thereon;

5

G.

6

defendant Warner/Chappell and SBI’s prior acts and practices;

7

H.

8

and

9

I.

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

ordering Defendants Warner/Chappell and SBI to return to Plaintiffs

awarding Plaintiffs and the other members of the Class restitution for
awarding Plaintiffs and the Class reasonable attorneys’ fees and costs;
granting such other and further relief as the Court deems just and

proper.
Dated: December 9, 2015

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
By:

/s/Betsy C. Manifold
BETSY C. MANIFOLD
FRANCIS M. GREGOREK (144785)
[e-mail]
BETSY C. MANIFOLD (182450)
[e-mail]
RACHELE R. RICKERT (190634)
[e-mail]
MARISA C. LIVESAY (223247)
[e-mail]
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (pro hac vice)
[e-mail]
JANINE POLLACK (pro hac vice)
[e-mail]
270 Madison Avenue
New York, NY 10016
Telephone: [phone]
Facsimile: 212-545-4753
Interim Lead Class Counsel for Plaintiffs
- 45 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

RANDALL S. NEWMAN PC
RANDALL S. NEWMAN (190547)
[e-mail]
37 Wall Street, Penthouse D
New York, NY 10005
Telephone: [phone]
Facsimile: 212/797-3172
DONAHUE GALLAGHER WOODS LLP
WILLIAM R. HILL (114954)
[e-mail]
ANDREW S. MACKAY (197074)
[e-mail]
DANIEL J. SCHACHT (259717)
[e-mail]
1999 Harrison Street, 25th Floor
Oakland, CA 94612-3520
Telephone: [phone]
Facsimile: 510/832-1486
GLANCY PRONGAY & MURRAY, LLP
LIONEL Z. GLANCY (134180)
[e-mail]
MARC L. GODINO (182689)
[e-mail]
KARA M. WOLKE (241521)
[e-mail]
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: [phone]
HUNT ORTMANN PALFFY NIEVES
DARLING & MAH, INC.
ALISON C. GIBBS (257526)
[e-mail]
OMEL A. NIEVES (134444)
[e-mail]
KATHLYNN E. SMITH (234541)
[e-mail]
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone [phone]
Facsimile 626/796-0107
Counsel for Plaintiffs

- 46 -

1

DEMAND FOR JURY TRIAL

2

Plaintiffs Good Morning To You Productions Corp. Robert Siegel, Rupa

3

Marya and Majar Productions, LLC, hereby demand a trial by jury to the extent that

4

the allegations contained herein are triable by jury under Rules 38-39 of the Federal

5

Rules of Civil Procedure 38-39 and Civil L.R. 38-1.

6
7

Dated: December 9, 2015

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

By:

/s/Betsy C. Manifold
BETSY C. MANIFOLD

FRANCIS M. GREGOREK (144785)
[e-mail]
BETSY C. MANIFOLD (182450)
[e-mail]
RACHELE R. RICKERT (190634)
[e-mail]
MARISA C. LIVESAY (223247)
[e-mail]
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (pro hac vice)
[e-mail]
JANINE POLLACK (pro hac vice)
[e-mail]
270 Madison Avenue
New York, NY 10016
Telephone: [phone]
Facsimile: 212-545-4753

24
25

Interim Lead Class Counsel for Plaintiffs

26
27
28

RANDALL S. NEWMAN PC
RANDALL S. NEWMAN (190547)
[e-mail]
37 Wall Street, Penthouse D
- 47 -

New York, NY 10005
Telephone: [phone]
Facsimile: 212/797-3172
DONAHUE GALLAGHER WOODS LLP
WILLIAM R. HILL (114954)
[e-mail]
ANDREW S. MACKAY (197074)
[e-mail]
DANIEL J. SCHACHT (259717)
[e-mail]
1999 Harrison Street, 25th Floor
Oakland, CA 94612-3520
Telephone: [phone]
Facsimile: 510/832-1486

1
2
3
4
5
6
7
8
9

GLANCY PRONGAY & MURRAY, LLP
LIONEL Z. GLANCY (134180)
[e-mail]
MARC L. GODINO (182689)
[e-mail]
KARA M. WOLKE (241521)
[e-mail]
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: [phone]

10
11
12
13
14
15
16
17

25

HUNT ORTMANN PALFFY NIEVES
DARLING & MAH, INC.
ALISON C. GIBBS (257526)
[e-mail]
OMEL A. NIEVES (134444)
[e-mail]
KATHLYNN E. SMITH (234541)
[e-mail]
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone: [phone]
Facsimile: 626/796-0107

26

Counsel for Plaintiffs

18
19
20
21
22
23
24

27
28

WARNERCHAPPELL:22353.fac.clean

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