As most are now aware, the song which has for years been a staple of American birthday celebrations has been wrested from the clutches of Warner/Chappell and placed in the public domain where it belongs...until someone steps up to claim the now orphaned copyright.Guest Post by Anna-Kaisa Kaila on Future of Music Coalition
“Happy Birthday” is the song everyone and your cat knows. The Guinness Book of World Records
lists it as the most frequently sung English song, but it is recognized around the world and sung enthusiastically in many different languages at birthday parties for children and adults alike. With hundreds of millions of public performances and easily billions of private ones, it without a question the most popular song in the musical canon of the twentieth century. Not to mention examples like Marilyn Monroe’s serenade version to the U.S. President John F. Kennedy in 1962an iconic performance of an iconic song.
“Happy Birthday” is so ubiquitous that many are surprised to learn that it in fact is not a folk song at all, but rather a profitable cash-cow of media conglomerate Warner/Chappell, the world’s third largest music publisher. It has been estimated that the licenses of the public performances and broadcast for this song alone generate revenues of $2M per year. Although Warner/Chappell insists they only charge commercial enterprises such as movie studios and greeting card companies, some unintentional aftershocks of the enforcement have included Girl Scouts being (erroneously) asked to obtain a license to sing the song around campfires, as well as many popular American restaurant chains developing alternative birthday songs, just to be safe, to celebrate their patrons. The idea that such a cherished artifact of common cultural heritage could be owned and charged for may feel intuitively wrong, even if such a feeling is based on misconceptions about the origins of the work or on a misplaced assumption of the existence of a copyright law equivalent to trademark law’s provisions around erosion/genericization. It is perhaps for this reason that anecdotes about “Happy Birthday” licenses have gained such traction.
However, as of September 2015, the tables have turned.
A simple tune with a complex history
The melody and the verse structure of what came to be known as “Happy Birthday To You” was originally composed in 1893 under the title “Good Morning to You.” It was first published in 1935 by Summy Co. in a collection called “Song Stories for the Kindergarten.” The title was eventually transferred through a series on acquisitions to Warner/Chappell Music, the music-publishing arm of Warner Music Group in 1988. The song has often been dismissed as a cute little ditty that was scribbled down by two simple teachers in imitation of numerous other folk songs of the time. But the full story is much more complicated.
The composers of the original melody were sisters Mildred and Patty Hill. Going against the common narrative of the song’s origin, Patty was a progressive kindergarten teacher and later a founder of the Teachers College at Columbia University, whereas Mildred was a celebrated pianist, composer and a pioneering ethnomusicologist. Their aim was to craft a classroom song that would be easy enough for children to sing, while still being musically interesting, structurally coherent and emotionally appropriate. Various drafts were meticulously tested with Patty’s classes and then modified to better suit the young audience – with great success, as the later popularity of the song testifies. Furthermore, the Hill sisters were very conscious about securing copyright protection for their work and defended their rights in a number of lawsuits in the early 20th century. The transformation from a good morning greeting to the standard birthday song took also place in those first few decades of the century, as the new cultural phenomenon of birthday celebrations involving groups of children was just being established.
To fully understand the case history, it must be observed that the copyright of “Happy Birthday to You” may be traced to three separate entities, all of which may give a different answer on the extent of the protection. First, there is the melody of “Good Morning to You,” composed in 1893. Second, there are the birthday lyrics, which were not included in the original classroom version. And finally, there is the 1935 piano arrangement published by Sammy Co. that includes the “Happy Birthday” lyrics, but gives no reliable indication of their origin. It is from this last date that Warner/Chappell has traced its alleged copyright of the song and calculated it to last until 2030 in the U.S.
Judge King blows out the candles
The case Rupa Marya v. Warner/Chappell Music Inc. was brought as a class action in 2013 by a group of music and film producers that had initially acquired licenses from Warner/Chappell Music for the use of “Happy Birthday” in a documentary film for amounts ranging between $400 and $3,000. The plaintiffs changed their minds, however, after discovering some of the complexities of the song’s history that cast serious doubts on its copyright status, as demonstrated by Robert Brauneis, the co-director of the Intellectual Property Law Program at the George Washington Law School, in a 2009 law review article. After an extensive inquiry into the details of the creation and registration of various elements of the work, the U.S. District Court Judge of the Central District of California agreed with the plaintiffs, ruling that Warner/Chappell Music had been collecting licensing fees on the basis of an invalid copyright claim.
Judge King noted there was no dispute regarding the copyright status of the melody. It had entered the public domain as the copyright for the song book expired in 1949, and consequently, the dispute only concerned the copyright status of the “Happy Birthday” lyrics. There was significant uncertainty as to their author and origin, starting from the first fleeting reference to them in a 1901 newspaper article. The full lyrics first appeared in print in 1911 without a reference to Patty Hill, indicating that they could have a different, currently unknown, author. Alternatively, Patty Hill could have written the lyrics herself, but extinguished the common law and the subsequent federal copyright protection by allowing them to be published under an incomplete copyright indication with her consent. As for the possible argument that the “Happy Birthday” lyrics would be too generic to warrant copyright protection in the first place, the ruling stayed silent. Regardless of the solution to this riddle, Judge King found that the copyright assignment to Summy Co. in the 1935 registration for the publication of “Song Stories” songbook only covered the specific piano arrangements of the melody of “Good Morning to You”, and that there was no evidence of lyrics having been included in the contract or in the registration. Thus, the claim of Warner/Chappell on “Happy Birthday” copyrights have vanished in a puff of (candle) smoke.
‘Happy Birthday’ to everyone?
Even if the victory of a class action lawsuit over a media conglomerate may be celebrated by some as a moral triumph, the joy may be dimmed by the realization that the story is not over yet. The parties of the dispute seemed not to have disagreed on the fact that the melody of “Happy Birthday” has been in public domain, now for more than half a century, but it may nevertheless have come as a surprise for some of the licensees of Warner/Chappell, who might have been able to avoid the licensing requirement all along simply by omitting the lyrics.
More importantly, the fact that Warner/Chappell’s copyright claim on the work was invalid does not directly place the whole work in the public domain and make it available for anyone to use for free. Rather, the lyrics are now an orphan work containing the small but existant possibility that someone could still show up with evidence of original authorship, thereby potentially making a grab for copyright on the lyrics. Given the hodgepodge of conflicting evidence on the authorship of the lyrics, as well as the uncertainty around Patty’s role as a co-author of the composition, this is unlikely. The copyright on the work might expire in Europe next year, 70 years after Patty’s death, but there is no guarantee of that either. This all depends on whether someone can reliably prove authorship of the lyrics. As for the monetary damages and the restitution of more than $5M of licensing fees from thousands of people and groups that had paid Warner/Chappell for the use of the song, the case is ongoing. All in all, the full impact of the ruling both within and outside of the U.S. remains to be seen.