“Happy Birthday”: Second verse, same as the first.

While I wasn’t looking, the lead plaintiff in the class action to have the song “Happy Birthday to You” declared to be in the public domain (1) in late July, voluntarily dismissed the action brought in the Southern District of New York, and (2) in late June, filed a class action in the Central District of California, which has been consolidated with other cases… but it appears that the allegations and claims as we knew them are all intact, just relocated. It would appear as well that the plaintiffs filed a Second Amended Consolidated Complaint along the way, because it is parts of this Second Amended Consolidated Complaint that are the subjects (objects?) of a recent motion to dismiss made by the defendants, Warner/Chappell Music, Inc. and Summy-Burchard, Inc.

On August 30, the defendants moved to dismiss the plaintiffs’ federal claims (Claims One and Two, of seven, seek the declaratory judgment and other relief that would follow from the entry of declaratory judgment) to the extent that they are time-barred by § 507(b) of the Copyright Act, a three-year statute of limitation. The defendants also moved for dismissal of the plaintiffs’ other five claims, all based in state law, as being preëmpted, insufficiently pleaded, time-barred, etc.

The court—Hon. George H. King, Chief U.S. District Judge, presiding—ruled as follows:

• Some of the plaintiffs’ federal law claims—that is, the claims of some of the plaintiffs—are time-barred, being older than three years. The plaintiffs argued for a four-year limitation period, inasmuch as the bar expressly provided in the Copyright Act doesn’t, or shouldn’t, apply to declamatory judgment actions, and the federal Declaratory Judgment Act does not have its own statute of limitations, so the court should borrow a limitation period from an analogous California statute… which argument the court found unpersuasive. So Claims One and Two were dismissed as to certain plaintiffs, with leave to amend their pleadings to allege delayed accrual or tolling. But the Second Amended Consolidated Complaint remained undismissed generally.

• And, giving effect to something the parties themselves had agreed upon at a conference, the court ordered that Claim One—for declaratory judgment—would be bifurcated through summary judgment. The other six claims—the one federal claim for post-declaration relief and the five state-law-based claims—are stayed until further order of the court.

I would love to be able to end this post by writing, “We’ll be watching this case closely as it continues…” or some such, but the truth is that I’ll probably get distracted and won’t even know about a resolution for a month after one is reached, and I’ll still be sending Warner/Chappell royalty checks every time I sing “Happy Birthday to You” even when the song is in the public domain….