The cake sits in front of you, candles glowing. “Happy birthday to you…,” everyone sings, and then you make a wish and blow out the candles. But have you ever noticed that you almost never see people singing that song in TV shows and movies?
There’s a reason: the song was under copyright, and using it meant paying royalties (totaling about $2 million per year). Indeed, many restaurants won’t even allow their employees to sing the song to customers, which has resulted in the spread of some interesting alternative songs at popular chains.
But that’s all about to change, because “Happy Birthday” now is in the public domain. In September, a federal judge determined the copyright on this American standard is invalid. How has this song, associated with one of our most common rituals and sung every day by thousands of people, been copyrighted all this time?
Song History
The song is believed to have been written by sisters Mildred and Patty Hill in the 1890s in Louisville, originally as a ditty called “Good Morning to You” for Patty’s kindergarten class. It was published in 1893, written for piano. Another Hill sister, Jessica, took up the reins of enforcing the rights to the song when it was used in a movie by Irving Berlin in 1934.
Testimony given by Patty in the course of the Berlin case reaffirmed that it was primarily sung as a morning song, and only occasionally with the birthday lyrics. The Hill sisters never published or copyrighted the birthday version. In fact, the words to the birthday version developed more or less as a folk song that evolved over time. The lawsuit against Berlin, as well as subsequent lawsuits that the Hills filed, never resulted in verdicts, so the issue was never actually settled in court.
Copyright Costs
The copyright to “Happy Birthday” was eventually filed in 1935 by Summy Co., which published the lyrics and a couple of piano arrangements. It changed hands and was last owned by music industry giant Warner/Chappell. Warner donates a third of the profits from licensing the song to a children’s charity. No one has carried through a court challenge to date because the cost of paying the royalty is generally considered to be less than the cost of a court challenge.
That all changed when Good Morning to You Productions decided to make a documentary about the song, which has such a widespread role in American culture. The company wanted to include the song in their film and such extensive use would be expensive. “It is shocking that someone claims to own it and others therefore have to pay a fee to use it,” Jennifer Nelson, the president of the production company bringing the suit, says in a statement issued by her legal team. “I hope to return it to the public where it rightfully belongs.”
Song on Trial
At trial both sides agreed that the melody of the song was in the public domain (with some piano arrangements still copyrighted) but disagreed about the copyright to the words. Because the song was registered with a copyright in 1935, it was given a 95 year copyright based on the law that was in effect at the time and changes that subsequently followed. The judge found that the original copyright holder never owned any copyright to the “Happy Birthday” lyrics and that the song is in the public domain, meaning no one owns it and everyone can use it.
Some issues remain unresolved, according to George Washington University law professor Robert Brauneis. “It does leave open some questions. If [the Hill sisters] didn’t convey the rights to Summy Co., then is there someone else that might still own them. Figuring out who owned [the rights] at this point would be quite an interesting job.”
Regardless, the plaintiffs are now asking that Warner repay royalties collected at least since 1998, which will be a huge financial hit for the company. Warner has plans to appeal the ruling.
For more on the history and background of the song and its copyright issues, take a look at this video from PBS:
Related articles on AvvoStories:
