Happy Birthday sue You; Happy Birthday sue You!

There’s no one who hasn’t awkwardly stood around their birthday cake while people sing “Happy Birthday to You”. It’s the world’s most famous song, sung to millions each year. And this six-word set of lyrics with a simple melody is protected by copyright.

In 1868, two Hill sisters from Kentucky composed a song called “Good Morning to All” (now known as the tune of “Happy Birthday”), which went like:

Good morning to you,

Good morning to you,

Good morning, dear children,

Good morning to all.

Nobody knows when or how the song transitioned to the lyrics of “Happy Birthday to You”.[i]  It appeared in The Beginners’ Book of Songs in 1912, and soon became famous as the birthday song.[ii] When it started appearing in Broadway, the third Hill sister filed a lawsuit against the uncredited and uncompensated use of the song. (It got dismissed for reasons unknown.)

In 1944, Hill Foundation, Inc. v. Clayton F. Summy Co.[iii] executed the sisters’ interests in all six of the versions of “Happy Birthday” and “Happy Birthday to You”; in any renewals and extensions thereof; and in any further arrangements that might be made of those works in the future. After a lengthy series of deals over decades, the publishing rights ended up in the hands of Warner/Chappell.

The duration of copyright (28 years) was extended by the Copyright Act of 1976 (75 years) and the Copyright Term Extension Act of 1998 added another 20 years, which means the song remains protected till atleast 2030.

It is now believed that the song is not public domain and certainly not free for use. Warner/Chappell Music claims copyright over the song, which means they must be paid royalty each time it is used or sung in public, and is said to collect $2m per year in royalties for the tune.[iv]

However, a controversy arose recently, when in June 2013, a class action lawsuit was brought forth against Warner/Chappell to declare the copyright invalid and make them return millions of dollars collected in licensing fees for the song[v].

Robert Brauneis[vi] cites the following problems with Warner/Chappell’s copyright:

  1. There is little or no evidence that Patty Hill actually the song.
  2. He cites evidence that the composer derived the tune from African-American spirituals, and as originality is a requirement of copyright, that might deprive the music of protection.
  3. The publisher failed to renew the copyright in 1921, when it entered the public domain.
  4. Even if Jessica Hill renewed the copyright in 1921, she had no basis to assert ownership of the “Happy Birthday” lyrics.
  5. The copyright does not include the melody and lyrics, the rights to which, it is asserted, never belonged to the Hills or their agents.

The case continues in the U.S. District Court for the Central District of California. If the court decides in favor of the plaintiff, Warner/Chappell could be ordered to return all copyright licensing fees it has collected for the past three years (around $6 million).In any event, this is the best challenge on a controversial copyright which has been contested for years, and the decision may put to rest a fairly heated topic in the world of U.S. copyright. Do not feel bad about the Hill sisters, though. They have already received tens of millions of dollars, none of which can be reclaimed.

For now, the song remains in a copyright-protected state. Sing it in a private party, and you probably won’t be sued. But use it in a restaurant, or in a film, or a public setting, and the situation will change. Royalties are due for commercial uses only, such as television programs, incorporating it into greeting cards, etc. It is the longest lasting top music hit, and it’s here to stay.

– Post authored by Neerja Gurnani

(Image courtesy Picmodelled. Source: http://www.express.co.uk/)

[i] Why are the rights to “Happy Birthday” in dispute? http://www.economist.com/blogs/economist-explains/2013/06/economist-explains-10

[ii] Good Morning to You v. Warner Chappel – Happy Birthday to You appendix of exhibits.pdf

[iv] Copyright and the World’s Most Popular Son, 56 Journal of the Copyright Society of the U.S.A. 335 (2009) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1111624

[v] Birthday Song’s Copyright Leads to a Lawsuit for the Ages http://www.nytimes.com/2013/06/14/nyregion/lawsuit-aims-to-strip-happy-birthday-to-you-of-its-copyright.html?_r=1&

[vi] Copyright and the World’s Most Popular Son, 56 Journal of the Copyright Society of the U.S.A. 335 (2009) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1111624