Here Come the Other “Happy Birthday” Lawsuits

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Here we go: according to a press release I just got, two more plaintiffs have filed "Happy Birthday" lawsuits—not meaning that they sued somebody on his or her birthday but they are jumping into the litigation over whether "Happy Birthday to You" is in the public domain. See "Happy Birthday to You, Happy Birthday to You, Here's a Copyright Lawsuit, Happy Birthday to You" (June 15, 2013).

Filmmaker Robert Siegel alleges that he had to pay $3,000 to use the song in a 2009 movie, and musician Rupa Marya says she had to pay for a license to use it in an upcoming live album by "Rupa & The April Fishes." Marya alleges in her complaint that the group recorded a version of "Happy Birthday to You" at a live show in San Francisco on April 27—her birthday—and then had to pay $455 to include the song on the album. Both lawsuits were apparently filed on June 19 in the Central District of California (Los Angeles).

Interestingly, Siegel and Marya are also represented (in part) by the same New York firm representing the plaintiff in the first case. That plaintiff was a New York corporation, "Good Morning to You Productions Corp.," likely incorporated by the filmmakers working on the documentary described in the earlier post. Siegel is also a resident of New York, and Marya lives in California. All three lawsuits make the same allegations, all assert federal and California law, and all seek to represent people in all 50 states who have had to pay the allegedly unlawful copyright fees.

You might be asking, or if not I'm suggesting that you do ask, why would the same firm file the same case on behalf of the same class three different times in two different places? Also, because the proposed class is nationwide, each of the individual plaintiffs is, technically speaking, already a member of the class suing in the other two cases. No class has actually been certified, of course, so right now these are just three individuals suing. But taking the class allegations literally, you could say that all three people are currently suing the same defendant in three different lawsuits.

The answer, as you might guess, or if not I'm suggesting that you do guess, is that there are other firms involved in the new cases. The New York firm is involved in all three, an Oakland firm is also involved in Marya's case, and a San Diego firm is also involved in Siegel's case (though he lives in New York). What's going on is probably that several firms have joined up for purposes of the "Happy Birthday" litigation, and for each to be in line for a cut of attorneys' fees, if any, each needs to be involved in a lawsuit. All the lawsuits (and there are likely more to come) could end up consolidated in a single court, which can result in some crowded courtrooms and occasionally some entertaining arguments over the splitting of fees.

To be clear, there is nothing unusual and nothing necessarily unethical about all this. Firms that represent plaintiffs are usually smaller than those on the defense side, and (sometimes) do not have the resources to litigate a big case individually. So sometimes what's happening is just a pooling of resources necessary to pursue claims that have merit. (Hey, it can happen.) As discussed in the earlier post, there seems to be a lot of support for the plaintiffs' position here. I do think there are times when these kinds of interlocking lawsuits, sometimes with interlocking and/or plaintiffs, are designed to make bogus litigation seem more serious, but I have no reason to think this is one of those times.

I'm really thinking of you, Mr. Guy Who Claimed He Was Fooled by "Crunch Berries" and Then Later Also by "Froot Loops," and other repeat plaintiffs like you. Our class-action system is not totally broken but unfortunately can encourage that kind of nonsense.