The popular song, “Happy Birthday To You,” was first copyrighted in 1935 by the Summy Company (“Summy”). Years later, in 1988, Warner/Chappell Music (“Warner”) purchased the company owning the copyright. Warner required that royalties be paid for public performances of the song and claimed that the copyright, which represented an estimated $2M to $5M in royalties annually, did not expire until 2030. Warner wanted to charge Jennifer Nelson, an independent filmmaker, $1500 for using the song in a documentary. She filed suit and, on September 22, 2015, in Rupa Marya v. Warner Chappell Music Inc., Case No. CV 13-4460-GHK (S.D. Cal.), federal Judge George H. King ruled that Warner’s copyright to “Happy Birthday to You” was invalid, as the alleged original authors of the song had never asserted a claim for the lyrics, though they did sue for rights to the original melody. As such, Summy never legally obtained the rights to the lyrics from the authors and therefore Warner’s copyright was invalid.
The Respecting Senior Performers as Essential Cultural Treasures (RESPECT) Act, introduced as House Resolution 4772 on May 29, 2014, would require digital music services to pay royalties for sound recordings fixed before February 15, 1972. Ironically, although Thomas Edison patented the mechanical phonograph cylinder as the first practical sound recording and reproduction device in 1878, the protection of sound recordings was governed only by state statutory and common law until 1972, when Congress passed the Sound Recording Amendment to the 1909 Copyright Act, which finally made sound recordings eligible for federal copyright protection. The RESPECT Act seeks to close a loophole in current copyright law that excepts digital music services that transmit or stream music by Internet radio, cable, or satellite, such as Sirius XM Radio, from having to pay performance royalties for pre-1972 sound recordings. The RESPECT Act does not confer federal copyright protection upon such sound recordings. If the law passes, legacy artists from the formative days of Rock-n-Roll, performers behind the Motown Sound, ‘60s folk and psychedelic rockers, and others, will be entitled to payment of royalties under federal statutory licensing requirements.