June 13, 2013 9:37am PT by Eriq Gardner
'Happy Birthday' for All: Filmmaker Aims to Free Song From Copyright Grip
In the late 19th century, a schoolteacher named Patty Smith Hill and her sister Mildred Hill composed the first version of a tune that would become internationally famous. In fact, "Happy Birthday" has been cited by the Guinness Book of World Records as the most recognized song in the English language. Yet, throughout the ensuing years, it's been under copyright control to the befuddlement of many who don't understand how something authored so long ago still necessitates a license fee whenever it is publicly performed. Yes, the copyright term is long, but not that long. Right?
A new lawsuit being filed today aims to have "Happy Birthday" declared as belonging to the public domain. The proposed class action is brought by a film company that is working on a documentary about the "Happy Birthday" song. During the making, the producers were informed that they would need to pay a $1,500 synchronization license fee to use the song in the documentary. The producers paid for fear of being liable for up to $150,000 in penalties for copyright infringement.
But now, Good Morning to You Productions Corp. has filed a lawsuit on behalf of all those in film, television and elsewhere who are paying for rights to "Happy Birthday." The plaintiff aims to force Warner/Chappell Music to return millions of dollars collected over the years for what the lawsuit calls "the world's most popular song."
Why "Happy Birthday" is under copyright is complicated.
When the Hill sisters first composed the song in 1893, it was called "Good Morning to All." Somewhere along the line the tune evolved into the version that is currently popular. The song has traditionally been regarded as copyrighted because the lyrics appeared in a songbook in 1924 and a piano arrangement was published in 1935. As such, it would neatly fit into changes in copyright law that conferred a lengthy 95 years of protection for works created after 1923. Had the songbook been published any earlier, there wouldn't be any question as to whether a license fee was needed when, for example, Marilyn Monroe sang it to John F. Kennedy in 1962.
Now, the documentary film company says it has "irrefutable documentary evidence, some dating back to 1893, [which] shows that the copyright to 'Happy Birthday,' if there ever was a valid copyright to any part of the song, expired no later than 1921 and that if defendant Warner/Chappell owns any rights to 'Happy Birthday,' those rights are limited to the extremely narrow right to reproduce and distribute specific piano arrangements for the song published in 1935."
The lawsuit says that in 1893, the Hill sisters sold and assigned their rights to a written manuscript that included the hit song to Clayton Summy in exchange for 10 percent of retail sales. That year, "Good Morning to All" is said to have been published in a songbook titled Song Stories for the Kindergarten, and a copyright application was filed the next year. In the following years, there would be more publications of this initial song and more copyright registrations.
Then, the lawsuit states, "Even though the lyrics to 'Happy Birthday to You' and the song 'Happy Birthday to You' had not been fixed in a tangible medium of expression, the public began singing 'Happy Birthday to You' no later than the early 1900s."
As evidence, the lawsuit cites a January 1901 edition of an Indiana school journal that described children singing the words "happy birthday to you." And then, in what the plaintiffs might hope will become a smoking gun, there's citation to a copy of a 1911 work published by the Board of Sunday Schools of the Methodist Episcopal Church printing the following lyrics:
"Happy birthday to you, Happy birthday to you, Happy birthday, dear John, Happy birthday to you. (Sung to the same tune as the 'Good Morning') [NOTE: The songs and exercises referred to in this program may be in these books:... 'Song Stories for the Sunday School,' by Patty Hill.]"
The religious school is reported to have filed a copyright application on this in 1912.
This might not conclusively settle the issue, as the sheet music that would use the song title "Happy Birthday to You" for the first time came later.
But the lawsuit aims to block various paths by which Warner/Chappell might assert its copyright control. For instance, the plaintiffs say that the publisher can't rely on late 19th century and early 20th century copyrights for the "Good Morning" melody because those have either expired or not been renewed. And the publisher allegedly can't rely on the 1935 piano arrangement because the works by then were not "original works of authorship, except to the extent of the piano arrangements themselves."
Good Morning to You Productions Corp. says that if a declaration is not given that "Happy Birthday" is in the public domain, the song will remain in copyright until 2030, when the published sheet music celebrates its 95th birthday. The attorneys representing the proposed class action are Randall Newman, Mark Rifkin, Janine Pollack, Beth Landes and Giti Baghban.