U.S. District Judge George King wants to hear more about whether the 19th century schoolteacher who has been credited with writing “Happy Birthday to You” — the English language’s most popular song — had abandoned the copyright to the lyrics. On Monday, King directed parties involved in a fight over whether the song is copyrighted to brief him on the issue of abandonment.

The lawsuit is a proposed class action that if successful would mean that film and TV producers no longer have to pay license fees to use the song. Is the “Happy Birthday” licensing cash cow about to be over? Maybe not. Although the deceptive headline might suggest otherwise, King’s new order could actually be a favorable sign for defendant Warner/Chappell in its efforts to defend the validity of its copyright.

To understand why this is potentially good news for the song publisher, one must understand the arguments presented at summary judgment.

The plaintiffs say that schoolteacher Patty Smith Hill and her sister Mildred Hill composed the first version of a tune that would become internationally famous back in 1889. It was then called “Good Morning to All.”

The details of what happened next are certainly a bit vague, but the Hill sisters sold their interest to Clayton Summy, who would later register various copyrights — one for the melody as early as 1893, for lyrics appearing in a songbook in 1924 and for a piano arrangement in 1935.

The plaintiffs are arguing that the melody has been in the public domain for more than 65 years, and that nobody knows who wrote the familiar “Happy Birthday” lyrics, but since the public was singing those lyrics in the early 1900s, before the copyrights were registered, the song had become a public work.

Essentially, the plaintiffs’ big conclusion is that “publication and repeated public performances of a work before any copyright is claimed precludes a subsequent copyright claim.”

Warner/Chappell denies the song is in the public domain.

“The fact that parties other than the Hill Sisters disseminated the lyrics to Happy Birthday to You prior to the 1935 registration does not displace the copyright that Warner/Chappell now owns,” it argues. “So long as the Hill Sisters had not copied the lyrics from someone else the work remains original to them, and thus fully eligible for copyright protection So long as the Hill Sisters did not publish or authorize others to publish their works prior to the 1935 registration, their Happy Birthday to You remained protected by common law copyright until the time of that registration.”

So maybe something from the 19th century can still be copyrighted? Maybe. Warner/Chappell acknowledges one exception. “So long as an author does not ‘abandon’ his literary property in the ‘work’ before he has published it…by some overt act which manifests his purpose to surrender his rights in the ‘work,’ there is no basis for finding the work to have been dedicated to the public domain.”

Warner/Chappell says the plaintiffs have no evidence of abandonment.

Today, after the judge heard oral arguments in March from the parties, the judge says he wants more on this abandonment issue because the summary judgment briefing “conflates the issue with the question of whether the copyright was lost due to general publication.”

Although he addresses both sides, it’s hard not to see the judge as referring to the plaintiffs when writing that “the Parties would do well to bear in mind the analytical distinction between abandonment and loss of a copyright due to the failure to follow statutory formalities.”

In his order, the judge also echoes what Warner/Chappell wrote in summary judgment papers that abandonment means “some overt act” indicative of surrendering rights and allowing the public to copy. The judge cites the Napster decision at the 9th Circuit as supporting this proposition. The plaintiffs argued that the Napster case had “nothing to do with this issue” of abandonment. They wanted the judge to focus on Hill’s knowledge of the song’s immense popularity and her authorizing her students to sing “Happy Birthday.” The judge appears to be siding with Warner/Chappell.

Meaning that the plaintiffs’ lawyers are going to have to go back through the evidence in the record and figure out how Patty Smith Hill made a move to ditch any authority on the lyrics more than a century ago.

Of course, the judge could still rule that the copyright was lost due to general publication or find other reasons why the song is in the public domain. But if that’s the case, why devote some extra attention to abandonment? [Billboard]