Rupa Marya v. Warner Chappell Music Inc

Filing 53

DECLARATION of Kelly M. Klaus in Support of MOTION to Dismiss Second Amended Consolidated Class Action Complaint and/or Motion to Strike Plaintiffs' Proposed Class Definition 52 filed by Defendant Warner Chappell Music Inc. (Klaus, Kelly)

I GLENN D. POMERANTZ (State Bar No. 112503)
gl~[e-mail]

2 KELLY M. KLAUS (State Bar No. 161091)
kelly [e-mail]
3 ADAM I. KAPLAN (State BarNo. 268182)
adam.kl:[e-mail]
4 MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue
5 Thirty-Fifth Floor
Los Angeles, California 90071-1560
6 Telephone: [phone]
Facsimile: [phone] ·
7
Attorneys for Defendants
8 Warner!ChaP.pell Music, Inc. and
Summy-Bircliard, Inc.
9
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

10
11

Lead Case No. CV 13-04460-GHK
(MRWx)

12 RUPAMARYA, eta/.
Plaintiffs,

13
14 v.

I

15 WARNER/CHAPPELL MUSIC, INC.,
Defendant.

16
17

DECLARATION OF KELLY M.
KLAUS IN SUPPORT OF
DEFENDANTS' MOTION TO
DISMISS SECOND AMENDED
CONSOLIDATED CLASS ACTION
COMPLAINT
D.ate:
September 30, 2013
Ttme:
9:30 a.m.
Courtroom: 650 (Roybal)
Judge: Hon. George H. King, Chief Judge

18
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20
21

MAJAR PRODUCTIONS LLC, On
22 Behalf of Itself and All Others
Similarly Situated,
23
Plaintiff,
24

Case No. CV 13-05164-GJK. (MR.Wx)

v.

25

WARNER/CHAPPELL MUSIC, INC.,
26 and SUMMY-BIRCHARD, INC.,
27

Defendants.

28
DECLARATION OF KELLY M. KLAUS IN SUPPORT
OF DEFENDANTS' MOTION TO DISMISS

I I, KELLY M. KLAUS, hereby declare:
2

I.

I am a member of the finn Munger, Tolles & Olson LLP, counsel for

3 Defendants Warner/Chappell Music, Inc. and Summy-Birchard, Inc. Uointly,
4 "Warner/Chappell"). I am admitted to practice law in the State of California and
5 before this Court. I submit this declaration in support of Warner/Chappell's Motion
6 to Dismiss Second Amended Consolidated Class Action Complaint and/or Motion
7 to Strike Plaintiffs' Proposed Class Definition ("Motion"). I have personal
8 knowledge of the facts stated herein and if called upon as a witness to testify as to
9 them, I could and would competently do so.
10

2.

At the time of this submission, the parties' Stipulation and [Proposed]

11 Order consolidating Case No. CV I3-04460-GHK (MRWx) (Marya et al. v.
I2 Warner/Chappell Music, Inc.) and Case No. CV 13-05I64-GHK (MRWx) (Majar v.
I3 Warner/Chappell Music, Inc. and Summy-Birchard, Inc.) remains pending.
I4

3.

Plaintiffs have informed Warner/Chappell that if this Court determines

I5 that Plaintiffs' Second Amended Consolidated Class Action Complaint ("SAC")
16 should not be filed in accordance with the pending Stipulation, Plaintiffs do not
17 object to Warner/Chappell's Motion serving as Warner/Chappell's response under
18 Rule I2 to both the consolidated complaint in Marya et al. and the complaint in

19 Majar.
20

4.

Attached hereto as Exhibit A is a true and correct copy of the SAC,

21 which Plaintiffs have provided to Warner/Chappell. Plaintiffs have informed
22 Warner/Chappell that if the Court so orders, they intend to file the SAC in
23 accordance with the pending Stipulation.
24 Ill
25 Ill
26 Ill
27 Ill

28 ///

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DECLARATION OF KELLY M. KLAUS IN SUPPOR
OF DEFENDANTS' MOTION TO DISMIS

I

I declare under penalty of perjury that the foregoing is true and correct.

2 Executed this 30th day of August, 20I3, at San Francisco, California.

3
4

5
6

Is/ Kelly M Klaus

By:

KELLY M. KLAUS

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DECLARATION OF KELLY M. KLAUS IN SUPPOR
OF DEFENDANTS' MOTION TO DISMIS

EXHIBIT A

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2
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6

BETSY C. MANIFOLD (182450)
[e-mail]
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
750 B Stree!z_ Suite 2770
San Diego, LA 92101
Tel.: [phone]; Fax: .[phone]
Counsel for Plaintiffs
(Additional Counsel Appear on Signature Page]

7

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

8
9

GOOD MORNING TO YOU
O PRODUCTIONS CORP.; ROBERT
11 SIEGEL; RUP A MARYA; and
12 MAJAR PRODUCTIONS, LLC; On
Behalf of Themselves and All Others
13 Similarly Situated,
14
Plaintiffs,
15

1

16
17
18
19
20

v.

WARNERICHAPPELL MUSIC,
INC., and SUMMY-BIRCHARD,
INC.,
Defendants.

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Lead Case No. CV 13-04460-GHK
(MRWx)

SECOND AMENDED
CONSOLIDATED COMPLAINT
FOR (1) INVALIDITY OF
COPYRIGHT UNDER THE
COPYRIGHT ACf (17 U.S.C. §§ 101
et seq.); (2) DECLARATORY AND
INJUNCTIVE RELIEF; (3)
VIOLATIONS OF CALIFORNIA
UNFAIR COMPETITION LAWS
(Cal. Bus. & Prof. Code §§ 17200 et
seq.); (4) BREACH OF CONTRACT;
(5) MONEY HAD AND RECEIVED;
(6) RESCISSION FOR FAILURE OF
CONSIDERATION; and (7)
VIOLATIONS OF CALIFORNIA
FALSE ADVERTISING LAWS (Cal.
Bus. & Prof. Code § 17500 et seq.)
CLASS ACTION
DEMAND FOR JURY TRIAL
Room: 650 (Roybal)
Judge: Hon. George H. King, Chief Judge

1

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

2

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

3 Majar Productions, LLC ("Majar") (collectively herein "Plaintiffs"), on behalf of
4

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

5

for their Consolidated Second Amended Complaint For Declaratory Judgment;

6

Injunctive And Declaratory Relief; And Damages For: (1) Invalidity Of Copyright

7

(Copyright Act, 17 U.S.C. §§ 101 et seq.); (2) Declaratory and Injunctive Relief

8

Upon Entry of Declaratory Judgment; (3) Unfair Competition Laws (Cal. Bus. &

9

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

10

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

11

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

12

defendant Warner/Chappell Music, Inc. ("Warner/Chappell") and Swnmy-Birchard,

13

Inc. ("SBI") (collectively "Defendants"), hereby allege as follows:

14
15

JURISDICTION AND VENUE
1.

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

16

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

17

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

18

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

19

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

20

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

21

2.

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

22

under 28 U.S.C. §§ 139l(b)-(c) and 28 U.S.C. § 1400(a), in that the claims arise in

23

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

24

and where they regularly conduct business.

25

3.

Paragraph 8 of the Film and Synchronization and Performance License

26

("Synchronization License") by and between assignee Plaintiff Siegel and defendant

27

Warner/Chappell states:

"this license has been entered into in, and shall be

28
- 1-

1

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

2

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

3

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

4

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

5

brought in this District under the Synchronization License.

INTRODUCTION

6

4.

7

This is an action to declare invalid the copyright that Defendants claim

8

to own to the world's most popular song, Happy Birthday to You (the "Song"), to

9

declare that the Song is dedicated to public use and in the public domain; and to

l0

return millions of dollars of unlawful licensing fees collected by defendant

ll

Warner/Chappell pursuant to its wrongful assertion of copyright ownership of the

12

Song.

13

5.

According to the United States Copyright Office ("Copyright Office"),

14

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

15

is nonnally registered as a work of the perfonning arts." Copyright Office Circular

16

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

17

(Feb. 20 12) (available at www.copyright.gov/circs/circ.56a.pdf). The author of a

18

musical composition generally is the composer, and the lyricist (if a different

19

person). /d.

20

6.

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

21

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

22

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

23

Birthday to You, and with that copyright the exclusive right to authorize the Song's

24

reproduction, distribution, and public perfonnances pursuant to federal copyright

25

law. Warner/Chappell declares in the first two sentences on the "About Us" page of

26

its website that "Warner/Chappell Music is [Warner Music Group]'s award-winning

27

global music publishing company. The Warner/Chappell Music catalog includes

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standards such as 'Happy Birthday To You' .... " Available

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1

at: http://www. wamerchappell.com/aboutJsp?currenttab=about_ us.

2

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

3

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

4

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

5

7.

Irrefutable documentary evidence, some dating back to 1893, shows

6

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

7

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

8

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

9

to the extremely narrow right to reproduce and distribute specific piano

10

arrangements for the song published in 1935.

11

adjudicated the validity or scope of the Defendants' claimed interest in Happy

12

Birthday to You, nor in the Song's melody or lyrics, which are themselves

13

independent works.

14

8.

Significantly, no court has ever

Various legal scholars and copyright and music industry experts agree

15

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

16

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

17

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

18

Director of the Intellectual Property Law Program at George Washington

19

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

20

is "doubtful" that Happy Birthday "is really still under copyright."

21

9.

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

22

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

23

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

24

restitution of all the unlawful licensing fees that defendants have improperly

25

collected from Plaintiffs and all other Class members.

PLAINTIFFS

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27
28

10.

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

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

1

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

2

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

3

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

4

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

5

11.

Plaintiff Robert Siegel is the assignee of BIG FAN PRODUCTIONS,
FA~'),

6

INC. ("BIG

7

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

8

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

9

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

10

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

11

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

12

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

13

entered into on or about July 20, 2009.

14

12.

an inactive New York cotporation and a resident of New York,

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

15

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 San Mateo

17

County, California. RTAF recorded Happy Birthday to You at a live show in San

18

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

19

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

20

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

21

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

22

to You, as alleged more fully herein.

23

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: Laszlo &

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

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lives of renowned cinematographers Laszlo Kovacs ("Kovacs") and Vilmos

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Zsigmond C'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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1 Russian invasion of Budapest and subsequently risked their lives to smuggle it out
2

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

3

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

4

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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9

14.

Defendant Warner/Chappell is a Delaware corporation with its

l0

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

11

California 90025 and regularly conducts business within this Judicial District.

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15.

Defendant SBI is a Wyoming corporation with its principal place of

13

business located at l 0585 Santa Monica B~ulevard, Los Angeles, California 90025.

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

15

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

16

acquired by Warner/Chappell in or around 1998.
FACTUAL BACKGROUND

17
18
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Good Morning to All and the Popular Adoption ofHappy Birthday to You
16.

Sometime prior to 1893, Mildred J. Hill

('~Mildred

Hill") and her sister

20

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

21

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

22

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

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Patty Hill.

24

17.

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

Hill Sisters.
18.

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

27

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

28

('~Summy")

in exchange for 10 percent of retail sales of the manuscript. The sale

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1
2

included the song Good Morning to All.
19.

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

3

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

4

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

5

song Good Morning to All.

6
7
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20.

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

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

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

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

Song Stories for the Kindergarten bears a copyright notice reading

"Copyright 1893, by Clayton F. Summy."
23 .

As proprietor of the 1893 copyright in Song Stories for the

13

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

14

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

15

24.

The lyrics to Good Morning to All are:

16

Good morning to you

17

Good morning to you

18

Good morning dear children

19

Good morning to all.

20
21

25.

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

22

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

23

to You are:

24

Happy Birthday to You

25

Happy Birthday to You

26

27
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Happy Birthday dear [NAME]
Happy Birthday to You.

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1
2

26.

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

for the Kindergarten.

3

27.

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

4

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

5

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

6

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

7

28.

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

8

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

9

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

10
11

Byers.
29.

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

12

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

13

the Kindergarten.

14

30.

15
16
17
18

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

19

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

20

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

21
22
23

33.

The lyrics to Happy Birthday to You were 11ot 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

24

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

25

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

26

Good Morning to All. And yet again, neither the song Happy Birthday nor the lyrics

27

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

28

35.

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

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1
2
3

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

4

3 7.

5

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

6

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

7

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

8

publishers. (Emphasis added).

9

38.

10
11

Song Stories for the Sunday School bears a copyright notice reading

"Copyright 1899 by Clayton F. Summy Co."
39.

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

12

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

13

individual songs published therein, including Good Morning to All.

14

40.

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

15 for the Sunday School.
16

41.

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

17

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

18

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

19

42.

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

20

Indiana School Journal, the article entitled "First Grade Opening Exercises"

21

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

22

Song's lyrics or melody.

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25
26
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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

publication of Good Morning to All.

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46.
2

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

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

3

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

4

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

5

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

6

Sing: "Happy Birthday to You." (Music same as "Good-bye to You.")

7
8

47.

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

9
10

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

48.

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

49.

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

You.

11
12

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

13

of Sunday Schools of the Methodist Episcopal Church ("Board of Sunday Schools")

14

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

15

Lincoln, as follows:

16

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

17

Happy birthday to you. ·(Sung to the same tune as the "Good Morning")

18

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

19

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

20

50.

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

21

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

22

Elementary Worker and His Work.

23

51.

The Elementary Worker and His Work attributed authorship or

24

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

25

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

26

You.

27
28

52.

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

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

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

2
3

prior to its dissolution.
53.

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

4

Cable Company Chicago) had begun producing unauthorized printings of sheet

5

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

6

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

7

information and belief, Cable Company Chicago never asserted copyright ownership

8

in Happy Birthday.

9

Copyright History of Good Morning to All

10

54.

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

11

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

12

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

13

55.

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

14

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

15
16

proprietor, Summy Co.

17

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

18

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

19

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

20
21·

no later than that date.

22

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

23

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

24

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

25

56.

57.

58.

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

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

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

26

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

27

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

28

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

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1
2

You were published together.
59.

Coleman did not claim authorship of the song entitled Good Morning

3

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

4

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

5

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

6

Happy Birthday to You.

7

60.

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

8

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

9

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

10
11

School Board of the Southern Baptist Convention.
61.

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

Co. II") under the laws of the State of Illinois.

12

Summy Co.

13

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

14

was incorporated as a new corporation.

15

62.

Upon

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

16

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

17

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

18

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

19

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

20

63.

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

21

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

22

Children's Praise and Worship.

23

64.

Children's Praise and Worship attributed authorship or identified the

24

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

25

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

26

65.

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

27

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

28

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

- 11 -

authorship or ownership to the Hill Sisters.
2

66.

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

3

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

4

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

5

Worship in 1928.

6
7
8

9

67.

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

Sengstack ("Sengstack") in or around 1930.
68.

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

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

10 State of Delaware.

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

11

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

12

corporation.

13

69.

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

14

70.

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

15

singing telegram.

16

71.

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

17

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

18

the song Happy Birthday to You in public performances.

19

72.

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

20

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

21

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

22

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

23

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

24

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

25

Morning to All.

26

73.

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

27

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

28

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

- 12-

1

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

2

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

3

Good Morning to All.

4

74.

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

5

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

6

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

7

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

8

mUSIC.

9

Applications for Copyright for New Musical Arrangement

10

75.

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

11

for Copyright for Republished Musical Composition with new Copyright Matter

12

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

13

76.

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

14

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

15

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

16

solo."

17

77.

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

18

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

19

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

20

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

21

toAll.

22

78.

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

23

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

24

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

25

as to the arrangement itself.

26

79.

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

27

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

28

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

- 13-

80.

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

2

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

3

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

4

81.

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

5

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

6

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

7

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

8

to All.

9

82.

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

10

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

11

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

12

as to the arrangement itself.

13

83.

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

14

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

15

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

16

84.

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

17

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

18

copyrighted new matter as "arrangement of second piano part."

19

85.

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

20

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

21

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

22

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

23

to All.

24

86.

The application did not

The work registered with the Copyright Office as Reg. No. E4 7439 was

25

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

26

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

27

as to the arrangement itself.

28

87.

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

- 14-

1

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

2

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

3

88.

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

4

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

5

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

6

89.

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

7

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

8

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

9

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

10
11

toAll.
90.

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

12

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

13

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

14

as to the arrangement itself.

15

91.

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

16

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

17

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

18

92.

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

19

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

20

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

21

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

22

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

23

Sisters with writing the lyrics to Happy Birthday to You.

24

93.

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

25

second verse as the revised text, were included on the work registered with the

26

Copyright Office as Reg. No. E51988. However, the December 1935 Application

27

for Copyright did not attribute authorship of the lyrics to either of the Hill Sisters

28

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

- 15-

combination with the melody of Good Morning to All.
2

94.

The work registered with the Copyright Office as Reg. No. E5I988 was

3

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

4

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

5

as to the sheet music arrangement itself.

6

95.

The work registered as Reg. No. E5I988 was not eligible for federal

7

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

8

author to publish that work.

9

96.

.

On December 9, I935, Summy Co. III filed an Application for

10

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

II

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

12

97.

In that additional December 1935 Application for Copyright, Summy

I3

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

I4

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

I5

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

16

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

17

lyrics to Happy Birthday to You.

I8

98.

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

I9

registered with the Copyright Office as Reg. No. ES L990. However, the additional

20

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

21

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

22

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

23

combination with the melody of Good Morning to All.

24

99.

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

25

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

26

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

27

as to the sheet music arrangement itself.

28

- 16-

1

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

2

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

3

author to publish that work.

4

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

5

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

6

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

7

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

8

Summy Co. III for licensing Happy Birthday to You.

9
I0

102. On or about June 8, 1942, Patty Hill and Jessica Hill assigned all of
their interest in the 1893, 1896, 1899 and 1907 copyrights to The Hill Foundation.

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

toAI/.

19

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

20

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

21

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

22

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

23

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

24

1896~

25

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

26

Good Morning to All.

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

27

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

28

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

- 17-

determination of the validity or scope of any copyright related to Good Morning to
2
3
4

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

5

I 07. In 1962, Summy Co. III (renamed as Summy-Birchard Company) filed

6

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

7

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

8

specifically and expressly confined to the musical arrangements.

9

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

10

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

II

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

12

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

13

claimed otherwise.

14

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

15

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

16

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

17

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

18

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

19

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

20

this entity now operates as "Summy Birchard, Inc., - currently a subsidiary of

21

Warner/Chappell and Warner/Chappell's co-Defendant herein.

22

Happy Birthday to You -100 Years Later

23
24
25
26

111. According to a 1999 press release by ASCAP, Happy Birthday to You

was the most popular song of the 20th Century.
112. The 1998 edition of the Guinness Book of World Records identified

Happy Birthday to You as the most recognized song in the English language.

27
28

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

- 18-

copyright to Happy Birthday to You based on the piano arrangements that Summy
2

Co. III published in 1935.

3

114. ASCAP provides non-dramatic public performance licenses to bars,
ASCAP "blanket licenses" grant the

4

clubs, websites, and many other venues.

5

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

6

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

7

performance license royalties are distributed to ASCAP members based on surveys

8

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

9

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

I0

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

11

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

12
13

shares.
PlaintiffGMTY's Use of Happy Birthday to You

14
15

115. Plaintiff GMTY is producing a documentary movie, tentatively titled

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

16
17

song Happy Birthday to You is to be sung.

18
19

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

20

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

21

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

22

Warner/Chappell's website.

23

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

24

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

25

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

26

You.

27

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

28

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

- 19-

1 Birthday to You unless it paid the licensing fee of $1 ,500 and entered into the
2

synchronization license that Warner/Chappell demanded.

3

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

4

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

5

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

6

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

7

copyright that it claimed.

8

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

9

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

10

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

11

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

12

agreement to use Happy Birthday to You.

13

PlaintiffSiege/'s Use of Happy Birtlrday to You

14

123. BIG FAN produced a movie titled Big Fan.

15

124. In one of the scenes in Big Fan, the song Happy Birthday to You was

16

sung.

17
18

125. During the production process, Plaintiff Siegel learned that defendant
Warner/Chappell claimed exclusive copyright ownership to Happy Birthday to You.

19

126. Accordingly, in July 2009, Plaintiff Siegel requested a quote from

20

Warner/Chappell for a Synchronization License to use Happy Birthday to You in Big

21

Fan.

22

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

23

plaintiff Siegel's inquiry by demanding that BIG FAN pay it the sum of $3,000 and

24

enter into a Synchronization License for use of Happy Birthday to You.

25

128. Because Defendant Warner/Chappell notified BIG FAN thaJ it claimed

26

exclusive copyright ownership of Happy Birthday to You, BIG FAN faced a

27

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

28

-20-

1

BIG

2

. .

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

FAN

used

the

Song

without

Warner/Chappell's

permiSSIOn

and

3

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

4

the Synchronization License with Warner/Chappell and agreed to pay $3,000 based

5

upon Big Fan's theatrical release.

6

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

7

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

8

Warner/Chappell the sum of $3,000 pursuant to the Synchronization License.

9
10

Rupa's Performance of Happy Birthday to You

11

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

12

that defendant Warner/Chappell claimed exclusive copyright ownership to Happy

13

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

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

14

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

15

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

16

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

17

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

18

to the full remedies of the Copyright Act.

19

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

20

Intention

to

Obtain

Compulsory

License

to

Warner/Chappell

and

paid

21

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

22

of 5,000 copies of the Song.

23

Plaintiff Major Use of Happy Birthday to You

24

134. Plaintiff Majar wished to use the Happy Birthday in the opening scene

25

of the Film, wherein Zsigmond and others sang the Happy Birthday to You to

26

Kovacs in a celebration of Kovacs' life and the friendship ofthe two, thereby setting

27

the tone for the Film.

28

claimed exclusive copyright ownership to Happy Birthday, including for purposes

Plaintiff Majar learned that defendant Warner/Chappell

- 21 -

1

of issuing synchronization licenses. Accordingly, on or about October 29, 2009,

2

Plaintiff Majar paid to defendant Warner/Chappell the sum of $5000 for a

3

synchronization license to use Happy Birthday in the Film.

4

CLASS ALLEGATIONS

5

135. Plaintiffs GMTY, Siegel, Rupa and Majar bring this action under

6

Federal Rules of Civil Procedure 23(a) and (b) 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 First Amended Complaint on a common basis.

9

136. The proposed Class is comprised of:

10

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

11

employees,

12

Warner/Chappell, or paid Warner/Chappell or SBI, directly or indirectly

13

through its agents, a licensing fee for the song Happy Birthday to You at

14

any time from June 18, 2009, until Defendants' conduct as alleged herein

15

has ceased.

16

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

17

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

18

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

19

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

20

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

21

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

22
23

24

affiliates)

who

entered

into

a

license

with

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

25
26

and

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

b.

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

27

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

28

in 17 U.S.C. § 102;

-22-

•

1

c.

Happy Birthday to You;

2

3

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

d.

whether Warner/Chappell has violated the law by demanding and

4

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

5

a valid copyright to the song; and

6

e.

whether Warner/Chappell is required to return unlawfully obtained

7

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

8

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

9
10

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

11

140. Plaintiffs GMTY, Siegel, Rupa and Majar's claims are typical of the

12

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

13

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

14

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

15

unlawful conduct.

16

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

17

vigorous prosecution of this action and have retained competent legal counsel

18

experienced in class action and complex litigation.

19

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

20

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

21

Class and its members.

22

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

23

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

24

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

25

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

26

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

27

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

28

would unduly burden the courts.

- 23-

1
2

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

3

FIRST CLAIM FOR RELIEF

4

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

5

(On Behalf Of Plaintiffs And The Class)

6

(Against Defendants)

7
8

146. Plaintiffs repeat and reallege paragraphs 1 through 145 set forth above
as though they were fully set forth herein.

9

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

10

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

II

Civil Procedure.

12

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

13

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

14

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

15

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

16

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

17

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

18

royalties pursuant to 17 U.S.C. § II 5 for the creation and distribution of

19

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

20

under threat of a claim of copyright infringement.

21

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

22

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

23

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

24

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

25

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

26

involuntary.

27

151. Plaintiff GMTY's claim presents a justiciable controversy because

28

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

-24-

1 payment to Warner/Chappell for use of the song Happy Birthday to You in its film
2

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

3

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

4

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

5

price it demanded.

6

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

7

plaintiff Siegel enter into the Synchronization License agreement to use Happy

8

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

9

Synchronization License based upon

its claim of copyright ownership.

10

Warner/Chappell's demand was coercive in nature, and BIG FAN'S entering into

11

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

12

153. Plaintiff Siegel's claim presents a justiciable controversy because

13

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

14 payment to Warner/Chappell for use of the song Happy Birthday to You in its film
15

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

16

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

17

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

18

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

19

film anyway.

20

154. Plaintiff Rupa's claim presents a justiciable controversy because

21

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

22

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

23

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

24

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

25

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

26

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

27

for the mechanical license anyway.

28

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1

155. Defendants demanded that Plaintiff Majar pay to Defendants a

2

licensing fee in the sum of $5000 pursuant to Defendants' claim of copyright

3

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

4
5

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

6

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

7

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

8

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

9
10

Plaintiff Majar would be exposed to substantial statutory penalties under the
Copyright Act had it failed to seek Defendants' approval to use the Song and/or

11

failed to pay Defendants' demanded fee.

was involuntary.

12

157. Plaintiffs seek the Court's determination as to whether Defendants are

13
14

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

15

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

16
17

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

18
19

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

public domain.
158. If and to the extent that Defendants relies upon the 1893, 1896, 1899,
or 1907 copyrights for the melody for Good Morning to All, those copyrights

20
21

expired or were forfeited as alleged herein.

22

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

23

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

24
25

expired in 1921 and 1924, respectively.

26

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

27

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

28

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

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

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

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accordingly, those copyrights expired in 1927 and 1935, respectively.
2

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

3

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

4

notice of its original 1893 copyright.

5
6

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

7

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

8

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

9

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

10
11
12

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

1934 and

1935 copyrights pertained only to the piano

arrangements, not to the melody or lyrics of the song Happy Birthday to You.

13

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

14

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

15

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

16 prima facie evidence that the lyrics were not authored by the Hill Sisters.
17

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

18

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

19

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

20

copyright law.

21

16 7. Plaintiffs therefore request a declaration that:

22

(a)

23

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

24

publicly perform, Happy Birthday To You;

25

(b)

26

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

27

You; and

defendant Warner/Chappell and defendant SBI do not own the

defendant Warner/Chappell and defendant SBI do not own the

28

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

1

(c)

2

public use.

3

SECOND CLAIM FOR RELIEF

4

UPON ENTRY OF DECLARATORY JUDGMENT

5

DECLARATORY AND INJUNCTIVE RELIEF

6

PURSUANT TO 28 U.S.C § 2202

7

(On Behalf of Plaintiffs and the Class)

8

(Against Defendant Warner/Chappell)

9
10

168. Plaintiffs repeat and reallege paragraphs 1 through 167 set forth above
as though they were fully set forth herein.

11

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

12

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

13

Procedure.

14

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

15

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

16

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

17 judgment."
18

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

19

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

20

takings.

21
22

172. Plaintiffs seek relief for themselves and the other members of the
proposed Class upon the entry of declaratory judgment upon Claim I, as follows:

23

(a)

an injunction to prevent Defendants Warner/Chappell and SBI from

24

making further representations of ownership of the copyright to Happy

25

Birthday To You;

26

(b)

27

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

28

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

restitution to Plaintiffs and the other Class members oflicense fees paid

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1

the other Class members;

2

(c)

3

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

4

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

5

Birthday to You; and

6

(d)

an accounting for all monetary benefits obtained by Defendants,

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

7

THIRD CLAIM FOR RELIEF

8

UNFAIR BUSINESS ACfS AND PRACfiCES IN VIOLATION OF

9

CALIFORNIA BUSINESS AND PROFESSIONS CODE§§ 17200 ET SEQ.

10

(On Behalf of Plaintiffs and the Class)

1I

(Against Defendants)

12
13

173. Plaintiffs repeat and reallege paragraphs 1 through 172 set forth above
as though they were fully set forth herein.

14

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

15

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

16

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

17

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

18

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

19

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

20

result of Defendants' conduct.

21

176. California's Unfair Competition Laws, Business & Professions Code

22

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

23

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

24

178. Defendants'

actions,

claims,

nondisclosures,

and

misleading

25

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

26

deceive the consuming public within the meaning ofUCL §§ 17200, 17500.

27

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

28

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

-29-

1

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

2

Birthday to You.

3

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

4

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

5

and misleading statements and omissions, as alleged above.

6

181. As a result of Defendants' unfair and fraudulent acts and practices as

7

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

8

monetary injuries.

9

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

10

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

11

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

12
13

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

14

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

15

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

16

Therefore, the amount in controversy exceeds $5 million in the aggregate.

17
18

185. Unless restrained and enjoined, Defendants will continue to engage in
the above-described conduct. Accordingly, injunctive relief is appropriate.

19

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

20

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

21

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

22

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

23

§ 17203.

24

FOURTH CLAIM FOR RELIEF

25

BREACH OF CONTRACT

26
27

(On Behalf of Plaintiffs and the Class Against All Defendants)

28

187. Plaintiffs repeat and reallege each and every foregoing allegation as
though fully set forth herein.

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1

188. Plaintiffs

entered

into

license

agreements

with

Defendant

2

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

3

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

4

189. Plaintiffs are informed and believe that Defendants'

licensing

5
6

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

7

Happy Birthday.

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9

10
11
12
13
14
15

16
17
18
19
20
21
22
23
24
25
26

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

190. Plaintiffs and the Class have satisfied their obligations under each such
licensing agreement with Warner/Chappell.
191. As alleged herein, Defendants do not own the copyright interests
claimed in Happy Birthday and, as a result of its unlawful and false assertions of the
same, Defendants have violated the representations and warranties made in the
licensing agreements, thereby materially breaching the licensing agreements.
192. By reason of the foregoing, Plaintiffs and the Class have been damaged
in an amount to be determined at trial.
FIFTH CLAIM FOR RELIEF
COMMON COUNT FOR MONEY HAD AND RECEIVED

(On Behalf of Plaintiffs and the Class)
(Against Defendants)
193. Plaintiffs repeat and reallege paragraphs 1 through 192 set forth above
as though they were fully set forth herein.
194. Within the last four years, Defendants Warner/Chappell and/or . SBI
became indebted to Plaintiffs and all class members for money had and received by
Defendants for the use and benefit of Plaintiffs and class members. The money in
equity and good conscience belongs to Plaintiffs and class members.

27

28

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1

SIXTH CLAIM FOR RELIEF

2

RESCISSION FOR FAILURE OF CONSIDERATION

3

(On Behalf of Plaintiffs and the Class)

4

(Against Defendants)

5

6
7
8

9
10

195. Plaintiffs repeat and reallege paragraphs 1 through 194 set forth above
as though they were fully set forth herein.

196. Defendants' purported licenses were worthless and ineffectivet and do
not constitute a valid consideration.

197. The complete lack of consideration obviates any need for notice to
Defendants.

11
12

SEVENTH CLAIM FOR RELIEF
FALSE ADVERTISING, CAL. BUS. & PROF. CODE§§ 17500 ET SEQ.

13

(On Behalf of Plaintiffs and the Class)

14

(Against Defendants)

15
16

198. Plaintiffs repeat and reallege paragraphs 1 through 197 set forth above
as though they were fully set forth herein.

17

199. On information and belieft Defendants Warner/Chappell and SBI

18

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

19

propertyt namely the composition Happy Birthday to You.

20

200. Defendants

Warner/Chappell

and/or SBI

publicly

disseminated

21

advertising which contained statements which were untrue and misleading and

22

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

23

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

24

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

25

misleading.

26
27

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

28

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1

DEMAND FOR JURY TRIAL

2

Plaintiffs GMTY, Siegel, Rupa and Majar hereby demand a trial by jury to the

3

extent that the allegations contained herein are triable by jury under Federal Rules of

4

Civil Procedure 38-39.
PRAYER RELIEF

5
6

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

7

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

8

Defendants as follows:

9

A.

certifying the Class as requested herein;

10

B.

declaring that the song Happy Birthday to You is not protected

11

by federal copyright law, is dedicated to public use, and is in the public

12

domain;

13

C.

14

from asserting any copyright to the song Happy Birthday to You;

15

D.

16

from charging or collecting any licensing or other fees for use of the

17

song Happy Birthday to You;

18

E.

19

Warner/Chappell and SBI unlawfully collected from plaintiffs, the

20

other members of the Class, and ASCAP for use of the song Happy

21

Birthday to You;

22

F.

23

Plaintiffs and the other members of the Class all the licensing or other

24

fees they have collected from them, directly or indirectly through its

25

agents, for use of the song Happy Birthday to You, together with

26

interest thereon;

27

G.

28

restitution for defendant Warner/Chappell and SBI's prior acts and

permanently enJommg Defendants Warner/Chappell and SBI
permanently enjoining Defendants Warner/Chappell and SBI

imposing a constructive trust upon the money Defendants

ordering Defendants Warner/Chappell and SBI to return to

awarding Plaintiffs and the other members of the Class

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practices;
2

H.

3

costs; and

4

I.

5

proper.

6
7

awarding Plaintiffs and the Class reasonable attorneys' fees and

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

Dated: August 21, 20 13

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP

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BETSY C. MANIFOLD
FRANCIS M. GREGOREK (144785)
BETSY C. MANIFOLD (182450)
RACHELE R. RICKERT ( 190634)
MARISA C. LIVESAY (223247)
750 B Street, Suite 2770
San Diego, CA 9210 1
Telephone: [phone]
Facsimile: 619/234-4599
[e-mail]
[e-mail]
[e-mail]
[e-mail]
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (Pro Hac Vice)
JANINE POLLACK (Pro Hac Vice)
BETH A. LANDES (Pro Hac Vice)
GITI BAGHBAN
270 Madison Avenue
New York, NY 10016
Telephone: [phone]
Facsimile: 212-545-4753
[e-mail]
[e-mail]

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[e-mail]
[e-mail]

1
2
3

RANDALL S. NEWMAN PC
RANDALL S. NEWMAN (190547)
37 Wall Street, Penthouse D
New York, NY l 0005
Telephone: 212/797M3737
Facsimile: 212/797M3172
[e-mail]

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6
7
8

DONAHUE GALLAGHER WOODS LLP
WILLIAM R. HILL (114954)
ANDREW S. MACKAY ( 197074)
DANIEL J. SCHACHT (259717)
1
1999 Harrison Street, 25 h Floor
Oakland, CA 94612M3520
Telephone: [phone]
Facsimile: 510/832-1486
[e-mail]
[e-mail]
[e-mail]

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Dated: August 21, 2013

GLANCY BINI<OW & GOLDBERG, LLP

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21

MARC L. GODINO

22

LIONEL Z. GLANCY (134180)
MARC L. GODINO (182689)
KARAM. WOLKE (241521)
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 20lM9150
Facstmile: (31 0) 201-9160

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HUNT ORTMANN PALFFY NIEVES
DARLING & MAH, INC.
KATHERINE J. ODENBREIT (184619)

-35M

TINA B. NIEVES (134384)
301 North Lake Avenue, 7th Floor
Pasadena, CA 911 0 1
Telephone: [phone]
Facsimile: 949-251-5111
[e-mail]
[e-mail]

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3
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6

Attorneys for Plaintiffs

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WARNER 20137.nmd.cons comp

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