The Curious Copyright Case of Happy Birthday Song

You might find it hard to believe, the ubiquitous Happy Birthday song which we sing in all birthdays is claimed to be under copyright protection, which earns Warner Music a licensing royalty of about $2 Million per year.

A dispute that is ongoing in a New York Court is unraveling its interesting story.

The claim of original creation of "Happy Birthday" song is with two sisters from Kentucky, US, Mildred Jane Hill and Patty Smith Hill who were Kindergarten teachers. Mildred, born in 1859, was a concert pianist and composer. They composed a song of greeting for the children and Mildred came up with the melody (which we now know as the tune of "Happy Birthday") for teachers to use in welcoming students to the class each day:

Good morning to you,
Good morning to you,
Good morning, dear children,
Good morning to all.

During the 19^th century, birthday celebrations as we know it today were not so popular. To quote from Prof Brauneis’ essay (aptly titled 'Copyright and the World's Most Popular Song'):

According to scholar Elizabeth Pleck, birthday parties did not become common even among wealthy Americans until the late 1830s; modern birthday cakes emerged after 1850; and peer-culture birthday parties, involving children of the same age as the child whose birthday was being celebrated, emerged between 1870 and 1920, after American urban public schools became age-graded.

The history of how “Good morning to you” song turned into “Happy Birthday to you” is unclear and that adds o the intrigue of the ongoing copyright dispute. No one knows who wrote the words to "Happy Birthday to You" and put them to Mildred Hill's melody, or when it happened. The lyrics to "Happy Birthday to You" began appearing in conjunction with the "Good Morning to All". One of the earliest known book to include that combination of lyrics and melody is The Beginners' Book of Songs, published by the Cable Company in 1912.

A Broadway musical called Thousand Cheers used Happy Birthday version of Good Morning to you without the Good Morning to you part. The Hill sisters sued the producers for copyright infringement of their song claiming $250, at that time. This lawsuit was apparently settled. It was the Thousand Cheer show which was immensely popular which made the song a household ritual in all birthday parties. Time reports that the song and the practice of organizing birthday parties emerged around the same time, in the beginning of 20^th century – ‘the song and the occasion to sing it came up together’. “Happy Birthday to You” became the standard birthday song in the period between 1915 and 1935. A statement of the American Society of Composers, Authors and Publishers (ASCAP) in 1999 claimed that “Happy Birthday to You” was the most popular song of the twentieth century.

In 1935, a music publisher Clayton F. Summy Company, published "Happy Birthday (to You)" with the authorization of Jessica Hill in 1935 and filed copyright registrations for several versions of the song. This company which owns the copyright changed hands and is currently owned by Warner Music Group which collects about $ 2 Million in royalties per year. 

The song could claim to still remain in copyright domain due to peculiarities of the US copyright law. Under the laws in effect at the time of publication copyright would have expired after one 28-year term and a renewal of similar length, falling into public domain by 1991. However, the Copyright Act of 1976 extended the term of copyright protection to 75 years from date of publication, and the Copyright Term Extension Act of 1998 added another 20 years, so under current law the copyright protection of "Happy Birthday to You" will remain intact until at least 2030.

In June 2013, a film company working on a documentary about "Happy Birthday to You" filed a class action lawsuit to invalidate Warner Musics claim to copyright ownership of the song. It is this case that is making news. The New York Times reported that Lawyers for a filmmaker in New York said they had discovered “smoking-gun” evidence that the song “Happy Birthday to You” should no longer be subject to copyright restrictions. The court filing argues that copyright law at the time required the work to exhibit a copyright notice to claim copyright protection. This was not found in a 1922 publication without which the work was “interjected irrevocably into the public domain”. The following image has been produced in the court to substantiate this claim as reported by Techdirt.  

The actions of Warner Music, it is claimed, was to deliberately suppress the above evidence. We have to wait to hear what the court has to say on this matter. 

So do you have to worry if you sing Happy Birthday song in India? 

No, not at all. The song is in public domain in India due to an interesting provision of copyright law.  Though Copyright enjoys international protection, the duration of copyright, comes under the national treatment principle. In India, the copyright term is till 60 years from the year of publication. The Happy Birthday song which was published in 1912 is clearly outside copyright domain in India. 

However, in the United States Warner Music asserts copyright and till a court invalidates this claim of copyright ownership, the song "Happy Birthday to You" remains in a copyright-protected state! But as per the evidence that are being placed before the court, the US$ 2 Million that Warner Music earns seems to be without legal basis.

This is a clear case of Copyright overreach. It is such behavior that puts the entire system to disrepute in the eyes of the law abiding common-folk.