Update: A federal judge ruled Tuesday (September 22nd), that the company collecting royalties for the "Happy Birthday" song does not hold a valid copyright.

The "Happy Birthday" song is among the most recognizable and most performed pieces of music on the planet.

But ownership of the song’s lyrics and accompanying music is at the center of a hotly contested lawsuit, unfolding now in California between the company currently claiming ownership of the song, and documentary film makers and a musician who say they should be able to use it without paying user fees. Those ownership issues at the center of the case highlight critical questions for any small business that creates original content with potential commercial value.

Businesses will regularly deal with three intellectual property matters, including patents, trademarks, and copyright issues. All three are governed by different sets of laws, each with their own complexities, and each with potential relevance to your business.

Patents are for the new products or novel ideas you create. Trademarks protect things such as your company name and brand. The other materials you may create, such as photographs, jingles or original articles, are governed by copyright law.

Behind the Birthday Ballyhoo

As far as the birthday song goes, a music publishing company called Warner/Chappel currently claims to own the copyright to the music, which has it origins in the late 18th century, and is said to have been written as part of a larger piece composed by two sisters from Kentucky, named Mildred and Patty Hill.

The company’s legal problems began in 2013, when the suit over the copyright began, because the plaintiffs objected to the licensing fee they had to pay Warner/Chappell to use the music. Instead, they claim the music is in the public domain, a term used to describe a work that has been around for such a long period of time that its status is no longer protected.

That may turn out to be the case. A new development submitted to the court on Monday, where an earlier version of the birthday song appears to have been published without restraints and with the permission of the then-owners, would seem to indicate the song actually entered the public domain as early as 1922. That’s important to Warner/Chappell, because it’s reportedly been earning $2 million a year from rights to the song since 1988, when the company acquired the rights to the song for $25 million.

Still, if the 19th century seems like it was a long time ago, it was. And that’s precisely why you should consider getting a copyright for original material, because it can protect you for many decades, even after your death.

While numerous other songs and jingles as familiar as the "Happy Birthday" song are already in the public domain, including the national anthem “The Star Spangled Banner,” the lullaby “Rock-A-Bye-Baby,” and the popular song “A Tisket a Tasket,” it’s quite possible the birthday song is still protected, says Rudolph Telscher, principal and intellectual property expert at law firm Harness Dickey. 

“To the average person, this may seem like lawyers overreaching, because they don’t see a Rolling Stones or Madonna song,” Telscher says.

The Value of a Copyright

Generally speaking, you can claim a copyright from the moment you create or publish an original work. That copyright exists for the life of the person who created the work, plus 70 years, says Marsha Gentner, senior counsel and a trademark attorney at Dykema, a law firm in Washington, D.C.

If the work is created for hire, as written pieces such as this story are, copyright laws will protect it for a period of between 95 and 120 years following publication or creation. (Piror to 1978, copyright laws including the ones governing the birthday song were a bit more stringent, and required a copyright notice--usually indicated by a "C" surrounded by a circle, as well as the name of the person publishing the work, and the date of publication, legal experts say. Works such as the birthday song could be protected for up to 95 years, if the copyright was renewed after 28 years.)

But your assumed copyright won’t necessarily help you if things wind up in court. For a financial remedy, your material must be registered with the U.S. Copyright Office. And even then, it’s all a matter of timing, says Rachel Stilwell, an intellectual property attorney in Calabasas, California who specializes in music copyright law.

If you’ve registered your jingle right away, it helps courts establish a legal timeline, and that can assist you in recovering damages, plus legal fees and court costs. If you wait to register something, or do so retroactively after you’ve encountered an infringement problem, it’s possible you may win in court against an infringer, but you won’t be able to collect for legal costs and damages.

The good news is that you don’t necessarily need to head to a lawyer to get a copyright, attorneys say. Simply go to the U.S. Copyright Office and register your original work. It costs less than $50. And if you have created a large body of work, for example if you are a photographer, it's possible to get a single copyright to protect a volume or portfolio.

So if you have any questions about whether you should copyright that catchy tune you’ve created to market your new product, go ahead and do it, legal experts say. It won’t cost you much, in either time or money. And the benefits can be enormous.

“Copyright protection lasts for a very long time,” says Telscher.

Published on: Jul 29, 2015