For as long as I can remember, whenever we celebrated a birthday, we inevitably would gather around the birthday boy or girl and sing “Happy Birthday To You.” And although I may not know you personally, I can pretty much bet that you know exactly which Happy Birthday song I am referring to. Yes, there have been different variations to the song over the years, such as, “You smell like a Monkey, and you look like one too!” Where did that come from anyway? No Clue! But it is, after all, the most recognized song in the English language according to the 1998 Guinness Book of World Records.
Many years ago, Gene and I were having dinner at a local family-owned restaurant when the restaurant staff came through the restaurant clapping and singing the Happy Birthday song. Gene looked at me and said, “That’s surprising. Do you know why you almost never hear restaurant staff singing the Happy Birthday song? Because it’s protected by copyright.” What? We have been singing the Happy Birthday song our entire lives. It is just a song somebody made up and has passed on and on and on right? Wrong!
This weekend, I was having dinner at the Texas Roadhouse with a friend of ours who happens to also be an attorney and law professor. The restaurant staff came through preparing to celebrate the birthday of a patron with their own special chant and ride on saddle. This was my opportunity to impress my friend with my knowledge. So I, all proud of my non-attorney self, proceeded to tell him that I knew why restaurants did not sing the Happy Birthday Song, “Because it’s protected by copyright!!” To which he simply replied, “Not any more!” Again, What? He then proceeded to tell me how the case has recently been brought to court with new evidence that the case had been overturned as there was new evidence brought to light that the song belonged in the public domain. So I just had to write about this and well, being the non-attorney that I am, I reached out to Brian Focarino, one of my favorite copyright and trademark guest contributors, to help me in writing the remainder of this piece.
Origin of the Happy Birthday Tune
Some believed that Russian Born, Jewish-American writer & composer Irving Berlin, composed the song in the early 1900s. Berlin is a prolific song writer who is also know for many other popular songs that are still sung to this day, such as “White Christmas”, “There’s No Business Like Show Business”, and “God Bless America” to name just a few.
Out of curiosity, I searched Google for “who wrote happy birthday to you” and came up with a long list of articles on the topic, including a Wikipedia page specifically written on Happy Birthday To You. Deeper digging reveals that Patty Hill, a pioneer of early-education developmental education and kindergarten principal from Louisville KY, and her sister, Mildred, a pianist and composer, initially created the song in 1893. The sisters created simple songs that were easy to teach to young children to help engage them in the activities and schedule of kindergarten. The Clayton F. Summy Company published a collection of these songs in 1893.
The published work contained a song called “Good Morning to All,” which utilized the now-familiar melody, but did not contain the lyrics of the now-famous Happy Birthday song. Instead, “Good Morning to All” was meant to be sung by both the teacher and kindergarten students at the start of each day. The tune that would ultimately become known to all of us as “Happy Birthday To You” began:
Good Morning to You,
Good Morning to You,
Good Morning Dear Children (or teacher),
Good Morning to All.
The sisters assigned the copyright for “Good Morning to All” to Summy in 1983 in exchange for a cut of the songbook’s royalties.
Patty Hill explained that the tune was quickly modified to fit a wide variety of circumstances, including “Good-bye to you,” “Happy journey to you,” “Happy vacation,” Happy New Year and, eventually, Happy Birthday. Throughout the course of the legal dispute, plaintiffs produced evidence that “Good Morning to All’s” melody had been changed to include the “Happy Birthday” lyrics as early as 1901. The first published version of the song with the lyrics appeared in 1911, and other published versions appeared in songbooks in the 1920s (One example the filmmakers’ point to is a 1924 songbook called “Harvest Hymns,” which includes the Happy Birthday song). In 1934, Jessica (another of the Hill sisters and heir of Mildred’s estate) and Patty Hill assigned several works to Summy, which Warner/Chappell contends included “Happy Birthday” with the lyrics.
A Messy Legal History
Happy Birthday may very well be the oldest – and most widely recognizable – orphan work of all time. In 2013, a documentary filmmaker challenged the copyright on the world’s most popular song, calling Warner/Chappell Music’s claim to copyright royalties bogus. The filmmakers’ claim was no small declaration. By 1996, Warner/Chappell, who since 1988 has purported to own the rights to the song, was collecting over $2 million per year in licensing fees. The basis of Warner/Chappell’s claim is a copyright registration from 1935, made by the Summy Company, Warner/Chappell’s predecessor in interest.
The filmmakers’ claimed that Summy, and therefore Warner/Chappell, never obtained a copyright interest in “Happy Birthday,” based on publications of the song before 1935 when Summy registered a copyright for the song. Warner/Chappell and the plaintiffs both agree that the familiar melody, by itself, lost its copyright protection in 1921, 28 years after “Good Morning to All” was published in 1893. Instead, the “Happy Birthday” lawsuit focuses on the song’s specific lyrics, which Warner/Chappell argued were not set to the melody in a published, authorized form until the 1935. If Warner/Chappell is correct, then “Happy Birthday” could potentially retain copyright protection through 2030. Warner/Chappell has been enforcing the Happy Birthday copyright since 1988, when it bought Birch Tree Group, the successor to Summy Co., which claimed it possessed the rights to the original copyright.
The filmmakers’ lawsuit builds on earlier criticism over the tune’s copyright, including George Washington University Professor Robert Brauneis’ now-famous 2010 history “Copyright and the World’s Most Popular Song.” In it, Brauneis argues that “[Happy Birthday] is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application.”
Last month, a federal judge in Los Angeles held that Warner/Chappell’s ownership claims were invalid. Specifically, Judge George King held that the copyright registration obtained by Summy in 1935 only granted Summy the rights to specific piano arrangements of the music, not the actual lyrics. Judge King found that while it was true Summy had published “Good Morning to All,” there was no evidence it ever acquired the rights to the birthday lyrics themselves from whoever wrote them, notwithstanding the Hills’ transfer of various rights in 1934. An earlier lawsuit in 1942 between the Hills and Summy seems to establish that the Hills’ 1934 assignment referred to “piano arrangements” only, not lyrics. If Summy never acquired the rights to the melody in conjunction with the “Happy Birthday” lyrics, then Summy’s purported successors in interest, Warner/Chappell, would lack a valid, enforceable copyright.
Prior to 1978, a work published with authorization from the copyright owner and proper copyright notice received federal statutory copyright protection for 28 years, with the option to be renewed for another 28 years. Works published with authorization but without copyright notice entered the public domain. Warner/Chappell claimed that “Happy Birthday,” although written in 1893, was not published with authorization until 1935, when it was registered. That registration was later renewed in 1962. Meanwhile, Congress extended the renewal term for copyrights from 28 to 47 years in 1976, and extended it again to 67 years in 1998. As a result, Warner/Chappell argues its extended “Happy Birthday” copyright term is valid through 2030.
The plaintiffs argued alternatively that “Happy Birthday” had been published with authorization before 1923, was published before 1935 but without a copyright notice, that the copyright had been abandoned before 1935, that Summy’s 1935 registration covered only the song’s piano arrangement and not its lyrics, and that Warner/Chappell could not prove it acquired the copyright through a valid chain of title. Since the melody is conclusively within the public domain, Warner/Chappell needed to demonstrate that any copyright assignments also transferred the “Happy Birthday” lyrics, which it could not do. It also is important to note here that the court placed the burden of proof on Warner/Chappell because it found Warner/Chappell’s original 1935 copyright registration to be flawed, and thus not entitled to a presumption of validity. The court declared the registration flawed based on the fact that the copyright’s original deposit copy was lost (so exactly what was deposited cannot be certain even though the registration certificate still exists) and because the registration cites Preston Ware Orem as the author of the “Happy Birthday” lyrics, even though Warner/Chappell does not claim Orem authored the lyrics and most people agree Orem did not author them.
King’s ruling does not mean that “Happy Birthday” is affirmatively in the public domain. It may still be possible that someone else owns the rights to the song if the Hill sisters did not convey the rights to Summy Co. With the sisters dead for nearly a century, however, figuring out who might be properly said to own the rights would be a complicated proposition. Without anyone other than Warner/Chappell claiming to own a copyright interest in “Happy Birthday,” the song will become a de facto resident of the public domain, even if King’s ruling does not place it there de jure.
The history – and future – of Happy Birthday teaches that even works that may have fallen into the public domain can still generate income and be licensed by companies or individuals because of the orphan works conundrum. Many may not want to invest the time and money it actually takes to verify licensors’ claims to copyright, effectively extending the copyright term of potentially public works. As Professor Brauneis noted, the story of Happy Birthday “reveals collective action barriers to mounting challenges to copyright validity: the song generate[d] an estimated $2 million per year, and yet no one ha[d] ever sought adjudication of the validity of its copyright.”
The case also illustrates problems generated by copyright term extensions, which force litigants to prove activity that may have taken place many decades prior. Growing uncertainty over the origins and chains of title of various works (compounded by technological advancements such as mass digitization) has contributed to an explosion in orphan works that copyright reformers and the Copyright Office alike agree are frustrating liability risks, “and a major cause of gridlock in the digital marketplace.”