Despite its accessibility, the Happy Birthday song has long since been copyrighted by Warner/Chappell Music – with the corporation charging between $1,500 (£980.27) to $50,000 (£3,2675.57) for its use in movies, TV shows, advertisements, and musical birthday cards.
However, it has been entrenched in a copyright claim since 2013 by filmmakers who were working on a documentary for the song, and were told they’d have to pay £980.27 to use the song. They now tout newly uncovered evidence that “proves conclusively that there is no copyright to the Happy Birthday lyrics.”
The “proverbial smoking gun,” as the plaintiffs put it to a California judge, is a book of children’s songs.
“Before I began my filmmaking career, I never thought the song was owned by anyone,” Good Morning to You Productions director Jennifer Nelson told The New York Times. “I thought it belonged to everyone.” After doing some research, she determined that the song was a public adaptation of the song “Good Morning to All”. She filed a class-action lawsuit against Warner/Chappell, demanding that they returned decades of royalties to “unfairly charged” users.
Betsy Manifold and Mark Rifkin, attorneys for the plaintiffs, were told the documents were held back “mistakenly.” What was handed to them was a blurry version of “The Everyday Song Book”, published in 1927. The book contained Happy Birthday lyrics. Looking for a cleaner version, the lawyers hunted down a 1922 edition, which included the famous Happy Birthday song without any copyright infringement notice.
This isn’t the first time the song’s fate has been changed by a lawsuit. Most musicologists have traced the origins of Happy Birthday back to 19th century Kentucky sisters Mildred and Patty Hill. It was suggested that the two came up with a song entitled ”Good morning to all” – which quickly gained popularity.
Years later, an Irving Berlin musical entitled As Thousands Cheer opened on Broadway. One of its comedy sketches was set at a birthday party and made heavy use of the Good Morning song – but with a different verse. Jessica Hill, the Hill’s younger sister, noticed that the revamped version was being used without attribution and filed a copyright lawsuit against the show’s directors.
In 1988, the Birch Tree Group music publishers who eventually acquired the song from Summy Company sold the copyright to Warner for an estimated $25m (£16.34m). Through a series of renewals, Warner/Chappell claimed to own the copyright until 2030.
Warner/Chappell suggested that the “evidence instead showed the creator of the book had sought and obtained a license to publish the Happy Birthday lyrics and that he would not have had to secure a license from Jessica Hill if it already had the rights to Happy Birthday, or if the work had fallen into the public domain.”
In the opinion of law professor Robert Brauneis, the copyright to the song was never renewed after 1963. “The only renewals filed were for particular arrangements of the song – piano accompaniments and additional lyrics that are not in common use,” he said. “It is unlikely that these renewals suffice to preserve copyright in the song.”
More importantly, a copyright holder can only claim ownership “if it can trace its title back to the author or authors of the song.” While it is clear that Patty and Mildred Hill wrote and composed “Good Morning to All,” there is no conclusive evidence pointing to the author of the “Happy Birthday” variation.
“It is almost certainly no longer under copyright,” he said. “The melody of the song was most likely borrowed from other popular songs of the time, and the lyrics were likely improvised by a group of five and six-year-old children who never received any compensation.”
With much the same opinion, California judge George King ruled that Warner no longer held the rights to the song, because there was no historical proof that the original composers wrote the lyrics, or immediately obtained copyright for them.
King said: “Because theSummy Company never acquired the rights to the Happy Birthday lyrics, Warner do not own a valid copyright in the Happy Birthday lyrics. Warner asked us to find that the Hill sisters eventually gave Summy Company the rights in the lyrics to exploit and protect, but this assertion has no support in the record. The Hill sisters gave Summy Company the rights to the melody, and the rights to piano arrangements based on the melody, but never any rights to the lyrics.”
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