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)
manifold@whafh.com
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: 619/239-4599
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
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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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9.
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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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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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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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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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.
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On the October 16, 1893, copyright application, Summy claimed to be
the copyright’s proprietor, but not the author of the copyrighted works.
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Song Stories for the Kindergarten bears a copyright notice reading
“Copyright 1893, by Clayton F. Summy.”
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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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24.
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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26.
The lyrics to Happy Birthday to You were not published in Song Stories
for the Kindergarten.
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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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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.”
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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.
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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.
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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
- 42 -
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
- 43 -
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)
gregorek@whafh.com
BETSY C. MANIFOLD (182450)
manifold@whafh.com
RACHELE R. RICKERT (190634)
rickert@whafh.com
MARISA C. LIVESAY (223247)
livesay@whafh.com
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: 619/239-4599
Facsimile: 619/234-4599
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (pro hac vice)
rifkin@whafh.com
JANINE POLLACK (pro hac vice)
pollack@whafh.com
270 Madison Avenue
New York, NY 10016
Telephone: 212/545-4600
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)
rsn@randallnewman.net
37 Wall Street, Penthouse D
New York, NY 10005
Telephone: 212/797-3737
Facsimile: 212/797-3172
DONAHUE GALLAGHER WOODS LLP
WILLIAM R. HILL (114954)
rock@donahue.com
ANDREW S. MACKAY (197074)
andrew@donahue.com
DANIEL J. SCHACHT (259717)
daniel@donahue.com
1999 Harrison Street, 25th Floor
Oakland, CA 94612-3520
Telephone: 510/451-0544
Facsimile: 510/832-1486
GLANCY PRONGAY & MURRAY, LLP
LIONEL Z. GLANCY (134180)
lglancy@glancylaw.com
MARC L. GODINO (182689)
mgodino@glancylaw.com
KARA M. WOLKE (241521)
kwolke@glancylaw.com
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
HUNT ORTMANN PALFFY NIEVES
DARLING & MAH, INC.
ALISON C. GIBBS (257526)
gibbs@huntortmann.com
OMEL A. NIEVES (134444)
nieves@nieves-law.com
KATHLYNN E. SMITH (234541)
smith@huntortmann.com
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone 626/440-5200
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)
gregorek@whafh.com
BETSY C. MANIFOLD (182450)
manifold@whafh.com
RACHELE R. RICKERT (190634)
rickert@whafh.com
MARISA C. LIVESAY (223247)
livesay@whafh.com
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: 619/239-4599
Facsimile: 619/234-4599
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (pro hac vice)
rifkin@whafh.com
JANINE POLLACK (pro hac vice)
pollack@whafh.com
270 Madison Avenue
New York, NY 10016
Telephone: 212/545-4600
Facsimile: 212-545-4753
24
25
Interim Lead Class Counsel for Plaintiffs
26
27
28
RANDALL S. NEWMAN PC
RANDALL S. NEWMAN (190547)
rsn@randallnewman.net
37 Wall Street, Penthouse D
- 47 -
New York, NY 10005
Telephone: 212/797-3737
Facsimile: 212/797-3172
DONAHUE GALLAGHER WOODS LLP
WILLIAM R. HILL (114954)
rock@donahue.com
ANDREW S. MACKAY (197074)
andrew@donahue.com
DANIEL J. SCHACHT (259717)
daniel@donahue.com
1999 Harrison Street, 25th Floor
Oakland, CA 94612-3520
Telephone: 510/451-0544
Facsimile: 510/832-1486
1
2
3
4
5
6
7
8
9
GLANCY PRONGAY & MURRAY, LLP
LIONEL Z. GLANCY (134180)
lglancy@glancylaw.com
MARC L. GODINO (182689)
mgodino@glancylaw.com
KARA M. WOLKE (241521)
kwolke@glancylaw.com
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
10
11
12
13
14
15
16
17
25
HUNT ORTMANN PALFFY NIEVES
DARLING & MAH, INC.
ALISON C. GIBBS (257526)
gibbs@huntortmann.com
OMEL A. NIEVES (134444)
nieves@nieves-law.com
KATHLYNN E. SMITH (234541)
smith@huntortmann.com
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone: 626/440-5200
Facsimile: 626/796-0107
26
Counsel for Plaintiffs
18
19
20
21
22
23
24
27
28
WARNERCHAPPELL:22353.fac.clean
- 48 -
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