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Happy Birthday, We'll Sue


Claim:   The song "Happy Birthday to You" is protected by copyright.

TRUE

Origins:   "Happy Birthday to You" has been dubbed "the world's most popular song." For a century now, this simple ditty has been the traditional piece of music sung to Birthday millions of birthday celebrants every year, from uncomprehending infants to U.S. presidents; it has been performed in space; and it has been incorporated into untold millions of music boxes, watches, musical greeting cards, and other tuneful products. It therefore surprises many to discover that this ubiquitous song, a six-note melody composed in the 19th century and accompanied by a six-word set of repetitive lyrics, is still protected by copyright and will be for years to come.

The "Happy Birthday" story begins with two sisters from Kentucky, Mildred Jane Hill and Patty Smith Hill. Patty Smith Hill, born in 1868, was a kindergarten teacher and an influential educator who developed the "Patty Hill blocks" used in schools nationwide, served on the faculty of the Columbia University Teachers College for thirty years, and helped found the Institute of Child Welfare Research at Columbia in 1924. Patty's older sister, Mildred, born in 1859, was an accomplished organist, concert pianist, composer, and a musical scholar with a speciality in what was then referred to as "Negro music." In 1889 Mildred and Patty began collaborating on composing songs for children, some of which were published in an 1893 collection entitled Song Stories for the Kindergarten. One of their first efforts along those lines was the song "Good Morning to All": Mildred came up with the modest melody (which we now know as the tune of "Happy Birthday"), and sister Patty added some simple lyrics to create a greeting song for teachers to use in welcoming students to class each day:
Good morning to you,
Good morning to you,
Good morning, dear children,
Good morning to all.
Here the trail becomes murky: nobody really 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" melody around 1910 (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), and sometime between then and 1935 the "Happy Birthday to You"/"Good Morning to All" conflation became widely established as the standard birthday song.

By the mid-1930s, the revamped ditty had appeared in the Broadway musical The Band Wagon (1931) and had been used for Western Union's first "singing telegram" (1933), and when Irving Berlin's musical As Thousands Cheer made yet another uncredited and uncompensated use of the "Good Morning to All" melody, Jessica Hill, a third Hill sister who administered the copyright to "Good Morning to All" on behalf of her sisters, sprang into action and filed suit. (That lawsuit was eventually dismissed for lack of prosecution, and the reasons why the case did not move forward are unknown. It's possible the two parties reaches an undisclosed settlement, but no record of such an outcome exists.)

The Chicago-based music publisher Clayton F. Summy Company, working with tue authorization of Jessica Hill, published "Happy Birthday (to You)" in 1935 and filed copyright registrations for several versions of the song. In 1942, Patty and Jessica Hill created The Hill Foundation, Inc., a corporation to administer their interests in "Happy Birthday to You"/"Good Morning to All," and sued the Clayton F. Summy Company for back royalties, claiming that Jessica Hill had not assigned the copyright to "Happy Birthday to You"/"Good Morning to All," to Summy Company but had merely licensed the song for to them for limited publishing purposes. As Robert Brauneis noted in his study of the song and its copyright history, the end result of the lawsuit was that:
The Clayton F. Summy Company did gain ownership of at least a portion of Mildred Hill's interest in the GMTA/HBTY combination. In 1944, as part of the settlement of Hill Foundation, Inc. v. Clayton F. Summy Co., Patty and Jessica Hill executed a very thorough set of conveyances to the Hill Foundation, which in turn conveyed those interests to the Summy Company. The conveyances encompassed all of the sisters' interests in all six of the versions of "Happy Birthday" and "Happy Birthday to You" registered in 1934 and 1935; in any renewals and extensions thereof; and in any further arrangements that might be made of those works in the future. Since all of Jessica's interest and part of Patty's interest were inherited from Mildred, either directly or through her sister Mary, the Summy Company thereby became a proprietor of copyright in the posthumously published GMTA/HBTY combination.
Under the laws in effect at the time (1935), that 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.

So, who owns the publishing rights to "Happy Birthday to You" now? A New York accountant named John F. Sengstack bought the Clayton F. Summy Company in 1932 (thereby acquiring the rights to "Happy Birthday to You"), and after his retirement his son expanded the business by purchasing several other music publishers, including C.C. Birchard & Company in 1957. The business was soon afterwards renamed the Summy-Birchard Company; it became a division of the music education
firm Birchtree, Ltd. in the 1970s; and it was sold to Warner Communications Inc. in 1988 for a reported price of $25 million. Warner Communications merged with Time, Inc to create Time Warner Inc., an entity that was then purchased by America Online, creating AOL Time Warner. A few years later, Time Warner sold its music publishing and recording operations (which included Warner/Chappell) to a group of investors headed by Edgar Bronfman, Jr., who formed the Warner Music Group. Thus Summy-Birchard, a subsidiary of Warner/Chappell Music, Inc., the publishing arm of Warner Music Group, now claims to be the sole owner of copyright to the song "Happy Birthday to You" and collects an estimated $2 million per year in licensing fees (a portion of which are paid to Association for Childhood Education International) on that basis, and they will continue to do so through at least the year 2030.

(A common rumor holds that Paul McCartney owns the publishing rights to "Happy Birthday to You," but that rumor is false. Although Paul McCartney did buy up many song catalogs after seeing the rights to most of his Beatles songs slip away in a series of bad business deals, and his MPL Communications is now one of the world's largest privately-owned music publishing firms, he does not own the publishing rights to "Happy Birthday to You.")

Does this mean that everyone who warbles "Happy Birthday to You" to family members at birthday parties is engaging in copyright infringement if they fail to obtain permission from or pay royalties to the song's publisher? No. Royalties are due, of course, for commercial uses of the song, such as playing or singing it for profit, using it in movies, television programs, and stage shows, or incorporating it into musical products such as watches and greeting cards; as well, royalties are due for public performance, defined by copyright law as performances which occur "at a place open to the public, or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered." So, crooning "Happy Birthday to You" to family members and friends at home is fine, but performing a copyrighted work in a public setting such as a restaurant or a sports arena technically requires a license from ASCAP or the Harry Fox Agency (although such infringements are rarely prosecuted).

In recent years, some legal scholars have pointed out a numbere of potential problems with Warner/Chappell's claims to copyright ownership of "Happy Birthday to You," namely that there is little or no evidence that Patty Smith Hill actually wrote the lyrics to the song, that the first authorized publication of "Happy Birthday to You" bore an improper copyright notice (resulting in forfeiture of copyright protection), and that the copyright renewals filed in 1963 by Summy-Birchard covered only particular arrangements of the song and not the song itself. In June 2013, a film company working on a documentary about "Happy Birthday to You" filed a class action lawsuit which seeks to invalidate Warner/Chappell's claim to copyright ownership of the song and force the company to return millions of dollars they have collected over the years for wrongfully asserting copyright owership. But that case has not been fully adjudicated, and unless and until a court invalidates Warner/Chappell's assertion of copyright ownership, the song "Happy Birthday to You" remains in a copyright-protected state.

Last updated:   28 July 2014

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Sources:

    Anderson, Bruce.   "Beyond Measure."
    Attaché.   14 October 2010.

    Brauneis, Robert.   "Copyright and the World's Most Popular Song."
    Journal of the Copyright Society of the U.S.A.   January 2002.

    Fuld, James.   The Book of World-Famous Music: Classical, Popular and Folk.
    New York: Dover Publications, 2000.   ISBN 0-486-41475-2.

    Gardner, Eriq.   "'Happy Birthday' for All: Filmmaker Aims to Free Song from Copyright Grip."
    The Hollywood Reporter.   13 June 2013.

    Rivers, Scott.   "World's Most Popular Song Turns 100 This Year."
    The Salt Lake Tribune.   5 December 1993.

    Ross, Robert.   "Happy Birthday to You Too!"
    Southern Living.   1 June 1997.

    Smith, Lynn.   "Sisters Have a Hit, Year In and Year Out."
    Los Angeles Times.   5 April 1985   (p. E1).

    Associated Press.   "Company That Owns "Happy Birthday" Is for Sale."
    19 October 1998.

    Associated Press.   "Company That Owns Happy Birthday Sold for $25 Million."
    19 December 1998.