Let Them Eat Cake: "Happy Birthday" Finally Free to Perform 874 words · 5 minute read

Finally, we can wish each other happy birthday without fear of prosecution.

On September 22, 2015, the federal court ruled that the supposed copyright to the lyrics of “Happy Birthday To You,” among the most iconic (albeit simple) choruses in our culture, was invalid and that the publishers can no longer demand or receive royalty payments for their use.

Warner/Chappell Music Inc., the publisher that had held the copyright for over fifty years, estimated that it earns up to $2 million a year from the licensing fees from the song lyrics, according to The Consumerist. The plaintiffs singer Rupa Marya, filmmaker Robert Siegel, Good Morning to You Productions, and Majar Productions challenged the copyright after lawyers representing Warner/Chappell demanded payment to license the song.

For nearly a century, artists and filmmakers alike have struggled with the copyright. As Business Insider notes, Guinness World Records stated that it’s the most recognized song in the English language, as well as a staple melody of Western culture. In order to use the song in the film, Warner/Chappell has charged up to $10,000 for the license, as explained in the 2003 documentary, The Corporation.

It seems that cash flow has finally ebbed for Warner/Chappell, however, thanks to the careful scrutiny of the history of the song. Its story will make all songwriters double-check their own copyrights.

The Birth of Happy Birthday

In the late 19th century, two sisters, Patty and Mildred J. Hill, wrote the melody and lyrics to the song “Good Morning to All,” which debuted in the former’s kindergarten class. Soon after, in 1893, the Hill sisters assigned their rights to the manuscript containing “Good Morning to All” and other songs to the publisher Clayton Summy, who published the tune in a songbook titled Song Stories for the Kindergarten. Forty-six years later, in accordance to the Copyright Act of 1909, the copyright protection for Song Stories and “Good Morning to All” expired in 1949, according to the September 2015 ruling.

A clear-cut case, right? Well, if the dispute was regarding “Good Morning to All,” then yes. But “Happy Birthday to You” unfortunately does not have such a clean record as the Hill sisters’ original kindergarten tune.

“The origins of the lyrics to Happy Birthday are less clear,” the ruling explains. Both songs share the same melody, as well as nearly identical lyrics (just replace “Good Morning” with “Happy Birthday”). But its inception was never truly documented – it seems to have just been organically adapted by teachers and children as “Good Morning to You” circulated the country’s kindergarten classrooms.

The lyrics to the song were first published publicly in 1911 in a book titled The Elementary Worker and His Work, according to the ruling, but no one was credited with authorship of the song. Afterward, the song appeared in various publications, movies, and in the play As Thousands Cheer in 1933.

In 1934, the first “Happy Birthday” lawsuit was filed – Jessica Hill, sister and heir to Mildred, sued the producers of As Thousands Cheer for copyright infringement of “Good Morning,” which included the common melody for the two songs. According to the September 2015 ruling, “in Patty [Hill]’s deposition, she claimed that she wrote the lyrics to Happy Birthday around the time Good Morning was created.”

A year later, in 1935, the Clayton F. Summy Company registered the copyright to “Happy Birthday to You,” which the Hill sisters, via the charity the Hill Foundation, assigned to Summy Co. in 1944. Then, the Birch Tree Group, the successor to the Summy Co., was purchased by Warner Music in 1988.

The problem with all of this is – Patty Hill may not have written the lyrics at all.

Happy Birthday To All

According to the ruling, “the Plaintiffs challenge nearly every aspect of this narrative. They argue that the lyrics may have been written by someone else, the common law copyrights in the lyrics were lost due to general publication or abandonment before the lyrics were published, and the rights were never transferred to Summy Co.”

After over two years, Good Morning To You Productions’ June 2013 lawsuit seeking the court to declare “Happy Birthday to You” to be in the public domain is resolved – mostly.

According to a December 9 Hollywood Reporter article, Warner/Chappell has requested the judge to reconsider his September ruling or give them the opportunity to appeal. In addition, the Association for Childhood Education (ACE), a charity that identifies itself as being co-founded by Patty Hill, has tried to intervene. According to its legal papers, the charity has bequeathed full interest in the Hill Foundation and, therefore, receive a third of all royalties from “Happy Birthday To You.”

However, on December 22, Lexology reported that a settlement had been reached between the Plaintiffs and Warner/Chappell Music per the filing of recent U.S. court documents. The details of the settlement have not been made public as of yet. Once the settlement is finalized by the court, the song will likely be in the public domain.

Which means filmmakers, artists, and copyright-conscious citizens can finally celebrate with the song they want to sing, and not settle for the equally simplistic, yet less appealing “For He’s a Jolly Good Fellow.”

By: Deborah Seriki, Music Dealers