Have you ever been at a restaurant where the waiters sang “Happy Birthday to You” to a patron? Not the jazzy upbeat hand-clapping version, but the one you remember being sung to you as you blew out the candles when you were small. Have you heard that one in a restaurant? Think hard.
Odds are, you never have. And there’s a reason for that.
The “Happy Birthday” song was copyrighted.
If a restaurant had wanted to use the song, or a movie or TV show had wanted to feature characters singing it, they would have paid to do so. And it wasn’t cheap. A few years ago, a daytime talk show paid $700 so the audience could sing it. Reportedly, depending on the medium and how the song was used, it could cost as much as “six figures” to license it for a single use in a movie. Seriously.
But before we talk about why the song is making news now, we need to talk about how this whole mess got started.
The song “Happy Birthday to You” got its start about 130 years ago. In the late 1880s, a pianist named Mildred Hill and her sister Patty, a teacher, composed a song called “Good Morning to All,” which they sang to Patty Hill’s kindergarten class. The lyrics to the brief song went:
Good morning to you,
Good morning to you,
Good morning dear children,
Good morning to you.
The lyrics might not be familiar, but even just by reading the words it should be obvious that it was sung to the tune of what we now know as “Happy Birthday.” Historians believe that the tune and lyrics were likely appropriated (copied, borrowed, stolen, take your pick) from earlier popular songs going back to the early 1800s.
For a few years, the sisters tweaked and toyed with the lyrics and sheet music, until they were finally printed in a book called Song Stories for the Kindergarten in 1893.
Supposedly, one of the many altered forms of the lyrics conceived of by the Hills was what came to be known as “Happy Birthday.” But this variant wasn’t published. However, the Hills used it in their classroom, and it was apparently quite catchy, because it began to spread by osmosis. Eventually, versions of “Happy Birthday” appeared in print during the 1910s, ’20s, and ’30s, without any attribution to the Hills or any other author. (In the L.A. Times’ article on the recent legal developments, a page from a 1922 song book is featured, which includes three varying versions of “Good Morning” and “Happy Birthday” under the single heading, “Good Morning and Birthday Song.” This particular printing of the songs will figure largely later in our story.)
It’s during this period that the history of “Happy Birthday” and its relation to its progenitor, “Good Morning to All,” gets especially murky. The original “Good Morning” song was printed by the Clayton F. Summy Company, with the Hills receiving a share of royalties from the books. Summy went on to include it in many more songbooks, and eventually added the “Happy Birthday” version as well. But nobody really knew decisively where the new “Happy Birthday” lyrics had come from. But that didn’t stop the song from being entrenched in American culture. Its popularity exploded as it started popping up in the relatively new medium of radio, and eventually in film and live theater. By this time, “Good Morning to You” had pretty much disappeared from cultural awareness.
Then came the first “Happy Birthday” lawsuit…
In 1933, “Happy Birthday” was sung in an Irving Berlin stage musical. By this time, both Mildred Hill had died, and their youngest sister, Jessica Hill, had inherited some of the rights. For some reason, despite the song having appeared in a number of books without clear permission (or author attribution), it was the musical’s use of the song that finally pushed the surviving Hills over the edge, and they filed a copyright lawsuit in 1934. According to the sisters, they had never officially given anybody the right to distribute their tune in combination with the “Happy Birthday” lyrics, and that its previous appearances had been done without authorization. This meant that they had maintained a common law copyright to the work. Thus, despite the cultural nature the song had taken on, all of its previous appearances in media amounted to music piracy.
If this all sounds like it was a bit dodgy and confusing, that’s because it probably was. The especially peculiar thing is that their suit did not reference the lyrics of the song, only the melody. Ultimately, the Hills won their lawsuit, and everybody just more or less assumed that the Hills had asserted ownership of the melody and lyrics to the song.
If the lawsuit sounded dodgy, that was nothing compared to the resolution of the “Happy Birthday” case.
In a series of three agreements over the next decade or so, print, audio, and film rights to “Good Morning to You,” “Happy Birthday,” and the tune itself were transferred in bits and pieces over Summy Co. (Obviously, nobody cared about “Good Morning to You.”) As they received these rights, Summy made copyright claims on the various aspects of the songs and tune. However, the documentation on this process is, frankly, a mess. Basically, in the years after the 1934 court case, Summy did a bunch of legal hand waving that somehow justified the copyright of “Happy Birthday to You” and its background music as an original work in 1935. The justification for this was that this was a new and unique combination that had only now been authorized by the owners of the rights to the lyrics and music, and thus were only now being published as a new work, with an effective copyright date of 1935… despite the fact that the song/music ensemble had been in popular usage for decades.
Summy went on to carefully protect its copyright claim by creating a new company called Birch Tree Group Limited, to which was ascribed legal ownership of the song. In 1988, Birch Tree was purchased by Warner/Chappell Music, a newly formed subsidiary of Warner Brothers, for $25 million. Warner Brothers used all of its legal might to protect their claim to the song, and by 2010 were collecting around $2 million dollars per year in royalties for the song. Warner filed copyright claims on every single usage of the song in movies, TV, radio, and public performance (hence its absence from restaurants).
And that’s how things proceeded, until a documentary filmmaker proved to be the downfall of Warner’s copyright case.
Back in 2013, a documentary filmmaker named Jennifer Nelson who had wanted to make a documentary about the history of the song filed a class action suit against Warner Brothers, seeking the return of $1,500 she had initially paid to use the song. At the time, Warner Brothers’ claim was that while the copyright on the original melody had long lapsed due to having been published in 1893, “Happy Birthday” hadn’t been properly published until 1935, and thus was still owned by Warner, due to their having carefully re-copyrighted it over the years since then.
Fast forward through two years of both sides digging up dusty court records and even dustier music books. In July of this year, Nelson’s attorneys discovered a 1922 edition of a music book that contained the lyrics to Happy Birthday. In this edition, there is a credit line below the song’s title that reads, “Special permission through courtesy of the Clayton F. Summy Co.” At that time the book was printed, the Copyright Act of 1909 was in force, and the Act stated that all published works had to include the word “copyright,” abbreviation “copr.,” or the now well-known © symbol, in order for that work to be protected by copyright. If this protection of copyright wasn’t asserted in one of these three manners, the Copyright Act stated that such unprotected published works would be “interjected irrevocably into the public domain.”
Due to the appearance of the song in this form in 1922, Jennifer Nelson’s attorneys put forth a three-tiered legal argument:
- Because Summy ostensibly had the rights to the song at the time–as evidenced by the fact that they printed the song for years and weren’t sued by the Hills in the manner they eventually sued the theater production–by printing the song in 1922 without asserting their copyright, Summy had forever ceded all legal ownership of the song. This would make the legal mess of 1934 and thereafter null and void.
- Even if the legal argument for the first point didn’t hold up, because the book had been published in 1922, the book and all of its contents would have entered the public domain after 1950, because under the Copyright Act of 1909, copyrighted works were only protected for 28 years after the date of publication. The Act allowed for copyright to be renewed once by the work’s owner for another 28 years. But no such renewal had been filed by the book’s publisher or Summy before that period of protection had expired in 1950. Summy had believed that their copyright began in 1935, and thus didn’t file an extension until the early 1960s.
- Even if the necessary copyright renewal paperwork had been filed in 1950, that would have only extended the term of the copyright for another 28 years, meaning that the copyright had expired sometime during the Carter Administration.
Obviously, Warner/Chappell’s lawyers argued these points, claiming that the “special permission” mentioned in the 1922 book didn’t specify whether it covered both “Good Morning to All” and “Happy Birthday,” only one of them, and/or the sheet music. According to this argument, the publication could be considered unauthorized, meaning that the 1935 copyright still stood, and that due to the various copyright extensions put in place by the U.S. Congress since then, the lyrics to “Happy Birthday” would be copyright protected until 2030.
On Tuesday, the judge hearing the case ruled in favor of the plaintiff . The judge’s reasoning was that Patty and Jessica Hill had never asserted a copyright claim to the lyrics in their suit; after all, there was no proof that the “Happy Birthday” lyrics had even been written by them. Because of this, the Hills had only sued for the rights to the melody. According to the judge’s analysis of the 1934 court ruling, the rights that had been secured in the suit only covered the specific piano arrangement for the song. Because the Hills’ hadn’t secured their copyright for the lyrics, they couldn’t transfer ownership to Summy, and from Summy in turn to Warner/Chappell.
The judge did not rule that the song is now in the public domain, but only that Summy had never legally obtained rights to “Happy Birthday.” Consequently, Warner/Chappell did not own a copyright claim to the lyrics, and thus could not collect royalties.
And that’s where the matter stands now, though it almost certainly will be appealed in higher courts for years to come…