GW Law Professor Robert Brauneis discusses lawsuit over the beloved birthday song.
Think about every time you’ve heard “Happy Birthday” performed over bright candles in a movie or TV show. For each cheery, cake-filled scene, Warner/Chappell Music, which owns the rights to the tune, gets a check. The company claims copyright over one of the world’s most popular ditties and collects licensing fees for public entertainment uses—even when the tune is sung in restaurants. But now that a film company called Good Morning to You Productions has filed a class-action suit challenging the copyright, the party might be over for Warner/Chappell.
Good Morning to You Productions is making a documentary about the song and argues it belongs in the public domain. The company’s lawsuit questions millions of dollars Warner/Chappell has received in fees. Robert Brauneis, a George Washington University professor of law and co-director of GW’s Intellectual Property Law Program, researched and wrote about the song a few years ago, and has become an expert on the tune. GW Today talked to him about how such a common, simple song is causing complicated copyright debates.
Q: What can you tell us about the history of the “Happy Birthday” song?
A: The song was originally written and published in the early 1890s as “Good Morning to All.” It was used as a kindergarten greeting by students and teachers, and it had exactly the same melody as “Happy Birthday to You.” Patty and Mildred Hill, the sisters who wrote it, lived in Louisville, Ky. One was the principal of a kindergarten and later became a Columbia University professor. The other was a composer and ethnomusicologist—she transcribed hymns from black churches, which was unusual in Louisville in the 1890s. They put together a book called “Song Stories for the Kindergarten” by writing in the evening and trying songs out in the kindergarten during the day. There are many songs in that book—but one of them has become really, really famous compared to the others.
Q: What are the copyright issues surrounding the song?
A: “Good Morning to All” was published in 1893 and it got 56 years of copyright protection. The copyright term ended in 1949, so the tune is now in the public domain. The question is whether the combination of that tune and the words “happy birthday to you” are under copyright. Warner/Chappell seems to claim that the words and music were first published together in a version that they, as owners of copyright, authorized in 1935. If that’s true, the song wouldn’t go into public domain until 2030.
Q: Does Warner/Chapell have a strong case defending its ownership of the song?
A: There are several weaknesses with that copyright. The cleanest reason—the most factually uncomplicated— would require a judge to look at renewal applications. Even assuming that federal copyright was properly obtained in 1935, which is doubtful, I don’t think it was properly renewed. Before the new Copyright Act was passed in 1976, copyright had two terms: An initial 28-year term, and an additional renewal term. To gain the renewal term, the author had to file a renewal application with the copyright office. If you didn’t indicate you were interested in maintaining copyright after 28 years, your work would go into the public domain.
The predecessors of Warner/Chappell owned rights to “Good Morning to All” until the tune went out of copyright in 1949. They published their version of “Happy Birthday” in 1935, after hiring two people to arrange the song for piano. Although you didn’t need to register songs to get copyright in 1935, they did, but they only registered the piano arrangements as the new material. When they filed a renewal application for the piece in 1962, they only claimed to be renewing copyright on the piano arrangements. That’s the cleanest way to challenge the copyright—to look at what papers were filed. The legal issue would be, “Well, what’s the impact of those filings?”
Q: Does anyone know who wrote the lyrics to the song?
A: Warner/Chappell’s ownership of “Happy Birthday” clearly depends upon one of the Hill sisters having written the lyrics—I don’t think it has an assignment of copyright from any other lyricist. There is little, if any, evidence that either of them did. They certainly wrote “Good Morning to All,” but there’s nothing that suggests they wrote “Happy Birthday to You.” The only sister credited in the original published versions of “Happy Birthday” is Mildred, the musician and composer—they do not credit a lyricist. Mildred and Patty had a sister, Jessica Hill, who was deposed and testified during a lawsuit in the mid-1930s. If you read her testimony carefully, she says, “My sisters wrote the words ‘Good Morning to All.’” The attorney asks, “Were other lyrics sung with that song?” And she says, “Yes, lots—we sang ‘goodnight to you,’ we sang ‘happy Christmas to you’ and we sang ‘happy birthday to you.’” She testifies that the lyrics were sung in the 1890s, but she doesn’t say her sisters wrote them. You can imagine that in a kindergarten setting, everybody invents lyrics for every occasion, because it’s a tune the kids know.
Q: How did you become interested in the history behind the copyright of this song?
A: I read a statement penned by my former boss, Justice Stephen Breyer. He dissented in a case called Eldred v. Ashcroft, about the extension of the term of copyright, and he cited the “Happy Birthday” song. The dissent stated that though the melody was published in 1893, it was copyrighted after litigation in 1935. I wanted to understand how it could be possible that a song could be copyrighted after litigation, and over 40 years after the melody was published. That started me on the trail, but I only wrote the article because I discovered rich sets of archival material about the song’s history.
Q: Have there been other cases proving a song is public domain?
A: There have been very few cases, for two reasons. First, each individual user of a song pays relatively little money to use it. The users who likely pay most to use “Happy Birthday” are producers of Hollywood films, and they may be paying $20,000 or $30,000 in licensing fees, which are very small portions of budgets of millions of dollars.
Second, even if someone threatened to file a lawsuit arguing a work is public domain, owners who were unsure of their claims would probably offer to settle and say, “We don’t want to deal with this, just go ahead and use it.” It’s unlikely that the user would have standing to maintain the lawsuit if the owner was willing to give them the work for free.
Q: What makes this case different?
A: Good Morning to You Productions filed a class-action lawsuit, which groups together everyone who has paid licensing fees for “Happy Birthday” in the past four years. If you aggregate all the money together, it’s significant—in the millions of dollars. That’s enough to support hiring attorneys and worth litigating over.