Today, August 13, is my birthday. Like so many birthdays before I expect fully that my family will call me up and sing a very familiar song, Happy Birthday to You.
Though few are familiar with my aunt’s rendition of the song, which is done in a very convincing Donald Duck voice, the song itself is possibly the best known tune in the English language, or even the world.
However, if tonight my wife and I go to a restaurant and the staff decides to sing a song (meaning my wife has played a very mean joke) it won’t be Happy Birthday to You (HBTY) they sing. The reason is simple, they would have to pay money to use it and it is cheaper to come up with a new song and avoid the issue altogether. This is because, at least according to popular convention, the song is copyrighted and any use of it for a commercial work requires a licensing fee.
But despite the fact restaurants and movies both avoid the song as much as possible, many movies use “For He’s a Jolly Good Fellow” instead, the song is big business. Generating an estimated $2 million revenue per year, approximately 1% of all song royalties awarded.
Yet, it might all be an illusion, a licensing scheme for a song without any copyright to protect.
Background
According to Snopes, HBTY began life as “Good Morning to All” and was written by the Hill sisters, Mildred J and Patty Smith. It began life as a song for teachers to sing to a kindergarten class morning and, though the melody is the same (save a split note at the beginning of each line to accomidate two-syllable word “Happy” instead of Good”), the lyrics were notable different.
Good morning to you,
Good morning to you,
Good morning, dear children,
Good morning to all.
What happened next is murky and largely unknown. Over the next forty years, the song became very popular but the lyrics changed, first to “Good Morning to You” and then to the better known HBTY version. Who changed them and when remains a mystery.
What is known is that in 1934 the Hill sisters upset with the unpaid and unattributed use of their song in a musical “When Thousands Cheer”, filed suit. Though the case never went the distance and was settled before a judgment was rendered, the Hill sisters felt confident enough in their ownership of the copyright of HBTY that the work was published and copyrighted a work for hire by Preston Ware Orem, who was credited for writing the lyrics, for the Summy Company, the publisher of “Good Morning to All”.
Currently, after a series of deals and buyouts, the copyright is held by Time Warner and its licensing is handled by ASCAP.
The original copyright was supposed to have expired in 1991 but the Copyright Act of 1976 extended the work’s copyright to 75 years after publication and the Copyright Extension act of 1998 added another 20 years. As such, the copyright will not expire until until 2030.
Until then, though family members, including my aunt, are safe when they sing the song, those that with to use it for commercial purposes are pushed to pay high royalties.
Happy Birthday To No One
If it seems odd to you that a song that is 115 years old, at least, is still copyright protected, you are not the only one.
According to a recent research paper, the copyright in the song might be just an illusion. There are several potential challenges to the copyrightability in the song including:
- Unoriginal: The song bears strong resemblance to several works that came before it, including “Happy Greetings to All” and “Good Night to You All”.
- Dubious Control: Since the 1934 case never made it to a judgment, it is unclear why the sisters and their publishers had the right to register the copyright in HBTY. To date, no court ruling has declared the Hill sisters, or those that came after them, the rightsholders in the song.
- Renewal Issues: Prior the Copyright Act of 1976, a renewal was required after 28 years to maintain copyright. It is unclear if the renewal was properly filed, filed by the correct party in a prompt manner. As such, the work may have long since slipped into the public domain.
The list of potential issues go on, but, despite the possible legal challenges, the song continues to rake in millions per year. The reason is that it is cheaper to license the song, even at the high rates, allegedly as high as $10,000 per use in a movie, than it is to litigate and possibly lose.
In short, answering the question of HBTY’s copyright status would cost more than the licensing fee, making it cheaper and much faster to pay up and move on.
Bottom Line
Is HBTY really copyrighted? No one knows for certain. Though it seems doubtful and as if there might be some very strong legal challenges to the copyright, until someone takes the matter to court and gets a judge to rule on it, there is no solid answer.
What is clear is that Time Warner has a money printing machine in the song. Two million per year is a tidy sum of money for a song with roots that go back well over a century. However, because of this, how we interact with and use the song is severely limited. That, in turn causes people to evaluate how much the copyright system we have benefits the pubic and if it is being used fairly.
The good news is that we don’t have to worry about paying royalties when we sing the song at our family table. This means that my aunt is safe from getting a letter from ASCAP.
Disney, on the other hand…
I've seen this copyright avoidance behavior at restaurants a bunch of times (in Canada): The restaurant (chain) has its own birthday cheer that's NOT "Happy birthday" and they'll gather the floor staff and do that one; but before they start their spiel they'll hover around the table for a bit and give the birthday party itself a chance to start singing "Happy birthday" on their own.
That's a pretty clever way of avoiding the issue. Interesting. Most of the restaurants in the U.S. have their own (often times very grating) birthday jingles. Personally, I think we should just replace all these jingles with the Arrogant Worms Happy Birthday Song.
Lyrics: http://artists.letssingit.com/arrogant-worms-lyri…
I'm sure the licensing fees are much lower
It's probably driven by the employees being uncomfortable and hemming and hawing a bit — rather than by a corporate policy.
I’ve seen this copyright avoidance behavior at restaurants a bunch of times (in Canada): The restaurant (chain) has its own birthday cheer that’s NOT “Happy birthday” and they’ll gather the floor staff and do that one; but before they start their spiel they’ll hover around the table for a bit and give the birthday party itself a chance to start singing “Happy birthday” on their own.
That's a pretty clever way of avoiding the issue. Interesting. Most of the restaurants in the U.S. have their own (often times very grating) birthday jingles. Personally, I think we should just replace all these jingles with the Arrogant Worms Happy Birthday Song.
Lyrics: http://artists.letssingit.com/arrogant-worms-lyri…
I'm sure the licensing fees are much lower
It’s probably driven by the employees being uncomfortable and hemming and hawing a bit — rather than by a corporate policy.
Happy Birthday
Thanks! It was a good one!
Happy Birthday
Thanks! It was a good one!
Happy birthday to you,
Happy birthday to you,
Happy birthday, dear Jonathan,
Happy birthday to you!
I love your story! I'm going to pass this along to my Ethics class tonight!
Thanks! Now I have to talk with my attorney to see if I need to delete this comment for a copyright violation.
Seriously though, thanks for the happy birthday wishes and let me know what your ethics class says!
Happy birthday to you,
Happy birthday to you,
Happy birthday, dear Jonathan,
Happy birthday to you!
I love your story! I’m going to pass this along to my Ethics class tonight!
Thanks! Now I have to talk with my attorney to see if I need to delete this comment for a copyright violation.
Seriously though, thanks for the happy birthday wishes and let me know what your ethics class says!
Only you man, only you. Hope you had a great one.
What? Who? Me? Plfffft.
It was a great one. I guess you want show notes now…
Only you man, only you. Hope you had a great one.
What? Who? Me? Plfffft.
It was a great one. I guess you want show notes now…
Hey Jon.
Some people rely on music for their carreers. The public domain is a good source of revenue. Unfortunately, the public domain will not grow significantly until 2018 because of the term extensions.
This is why Eric Eldred brought suit for declaratory relief in the infamous Eldred v. Ashcroft case stating that the "limited times" provision of the copyright clause in the Constitution was still being followed even when the term of copyright was extended to life plus 70 years by the Sonny Bono Copyright Term Extension Act of 1998. Eldred relied on the public domain and stood to take a financial hit from the extension.
I personally think that any non-commercial use should be fine. As long as I am not competition for the licensing agencies or content creators, they should leave me alone because I am a fan.
Though I agree with you strongly about the insane length of the copyright term and Eldred v. Ashcroft case, I have to argue that there are many cases where a non-commercial use, such as file sharing, can impact a commercial right, such as the ability to share music.
One of the changes of the Web is that the line between personal and commercial use has been blurred. Since it costs me nothing to make thousands of copies of a copyrighted works available on my server, I can do so for non-commercial reasons, such as "just because" but that can greatly impact the copyright holders ability to license the work and sell copies. The issue runs deep on the Web but commercial/non-commercial use is becoming harder to distinguish or separate.
Just the nature of the game at this time.
Hey Jon.
Some people rely on music for their carreers. The public domain is a good source of revenue. Unfortunately, the public domain will not grow significantly until 2018 because of the term extensions.
This is why Eric Eldred brought suit for declaratory relief in the infamous Eldred v. Ashcroft case stating that the “limited times” provision of the copyright clause in the Constitution was still being followed even when the term of copyright was extended to life plus 70 years by the Sonny Bono Copyright Term Extension Act of 1998. Eldred relied on the public domain and stood to take a financial hit from the extension.
I personally think that any non-commercial use should be fine. As long as I am not competition for the licensing agencies or content creators, they should leave me alone because I am a fan.
Though I agree with you strongly about the insane length of the copyright term and Eldred v. Ashcroft case, I have to argue that there are many cases where a non-commercial use, such as file sharing, can impact a commercial right, such as the ability to share music.
One of the changes of the Web is that the line between personal and commercial use has been blurred. Since it costs me nothing to make thousands of copies of a copyrighted works available on my server, I can do so for non-commercial reasons, such as “just because” but that can greatly impact the copyright holders ability to license the work and sell copies. The issue runs deep on the Web but commercial/non-commercial use is becoming harder to distinguish or separate.
Just the nature of the game at this time.
I imagine some people may find it jarring that someone "owns" Happy Birthday. I suspect most will outright dismiss the notion. But the truth is, someone does own it. It's murky past is irrelevant as possession is 9/10 of the law, and by their exertions and the capitulation of others, Time Warner are the recognised owner of the song in our society. And they will own it forever so long as our society stays its current course on copyrights.
I made a comment in this blog a few weeks back about how data was becoming so cheap, and so easy to copy and transfer that modern copyright was becoming nonsensical. In a sense, Happy Birthday represents the purest form of that argument.
"Happy Birthday", in plain text, is a mere 95 bytes in size, not counting redundancies(For comparison, the above blog post is about 5800 bytes in plain text) . In fact, so small is the file, modern operating systems will actually waste space storing it, as they allocate blocks of data on disk in units of 4096 bytes. When transferring this file, the file size will be dwarfed the communications overhead data needed to simply establish a connection. Even in the gaslight era, when the song was created, the words and notes were so trivial to copy, memorize and repeat that even young infants could do it cheaply and quickly.
Yet, someone "owns" this song. Moreover, they own all variants of this song, whomsoever's names is used in the lyrics. Your parent's and friends sang this song to you, in their own home, as you blew out candles on your birthday cake. You may have sung it to your own children. Yet all the while, you were "stealing". You and your parents were thieves, who denied and robbed the rightful property of the Hill Sisters or Time Warner or whoever held the deeds of ownership at that moment. And yes, this tiny tune has a deed of ownership; a formidable legal document which likewise dwarfs the "property" itself.
Happy Birthday is not an outlier or a pathology of copyright law. In fact, it represents the purest form of the institution. Absolute ownership of abstract ideas without regard to reason or practicality. It denies the logic that any 5 year old can see; No one can own a song, no more than anyone can own the sky. But I expect someday soon, someone will claim ownership of that too. The logic of our current property laws demands it.
Happy Birthday is only 95 bytes in size. The weight of reality, the reality of a digital age, is pressing heavily down upon it. Yet the only difference between it and longer songs, books, designs, 50GB movies and and 1TB TV series packs is simple size. Sizes that, sooner rather than later, the march of technology will make every bit as trivial as 95 bytes. So that is why the modern copyright industry will never relent, never give one inch, even on this most absurd of matters.
But sooner or later, something is going to have to give. And 95 bytes is a very, very small amount of data.
First off, arguing that the Happy Birthday situation is representative of "the purest form of the institution" is rather disingenuous when I spent the bulk of the post (5800 bytes as you pointed out) showing that it was likely a sham. It likely never qualified for copyright and any ownership claims have likely expired.
Furthermore, does not and never represented "absolute ownership of abstract ideas". In fact, Section 102 says quite plainly:
"In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."
Copyright represents the expression of an idea, not the idea itself. Though I agree that this case highlights problems with the current system, misrepresenting both the case and what copyright protects serves neither the purpose of creators or reformers. It just muddies the discussion.
Finally, I don't share your connection with the ease that which something can be copied and the fact it should be copied. You go to great lengths to show that these files are easily copied by computers. That is a known fact. But just because something can easily be copied does not change the time, energy and expense that went into creating it.
I'm not defending Happy Birthday. But saying it's trivial to copy something has no bearing on the creativity and work that went into making it. I can fit a novel on a floppy disk, does that change the fact it can take years to make one?
When you look at copyright from the solely technical aspect, you miss the human side and that is always what copyright has been about. I'm not saying its perfect and there is not room for improvement. But nothing is gained by looking at just one side of the issue.
I imagine some people may find it jarring that someone “owns” Happy Birthday. I suspect most will outright dismiss the notion. But the truth is, someone does own it. It’s murky past is irrelevant as possession is 9/10 of the law, and by their exertions and the capitulation of others, Time Warner are the recognised owner of the song in our society. And they will own it forever so long as our society stays its current course on copyrights.
I made a comment in this blog a few weeks back about how data was becoming so cheap, and so easy to copy and transfer that modern copyright was becoming nonsensical. In a sense, Happy Birthday represents the purest form of that argument.
“Happy Birthday”, in plain text, is a mere 95 bytes in size, not counting redundancies(For comparison, the above blog post is about 5800 bytes in plain text) . In fact, so small is the file, modern operating systems will actually waste space storing it, as they allocate blocks of data on disk in units of 4096 bytes. When transferring this file, the file size will be dwarfed the communications overhead data needed to simply establish a connection. Even in the gaslight era, when the song was created, the words and notes were so trivial to copy, memorize and repeat that even young infants could do it cheaply and quickly.
Yet, someone “owns” this song. Moreover, they own all variants of this song, whomsoever’s names is used in the lyrics. Your parent’s and friends sang this song to you, in their own home, as you blew out candles on your birthday cake. You may have sung it to your own children. Yet all the while, you were “stealing”. You and your parents were thieves, who denied and robbed the rightful property of the Hill Sisters or Time Warner or whoever held the deeds of ownership at that moment. And yes, this tiny tune has a deed of ownership; a formidable legal document which likewise dwarfs the “property” itself.
Happy Birthday is not an outlier or a pathology of copyright law. In fact, it represents the purest form of the institution. Absolute ownership of abstract ideas without regard to reason or practicality. It denies the logic that any 5 year old can see; No one can own a song, no more than anyone can own the sky. But I expect someday soon, someone will claim ownership of that too. The logic of our current property laws demands it.
Happy Birthday is only 95 bytes in size. The weight of reality, the reality of a digital age, is pressing heavily down upon it. Yet the only difference between it and longer songs, books, designs, 50GB movies and and 1TB TV series packs is simple size. Sizes that, sooner rather than later, the march of technology will make every bit as trivial as 95 bytes. So that is why the modern copyright industry will never relent, never give one inch, even on this most absurd of matters.
But sooner or later, something is going to have to give. And 95 bytes is a very, very small amount of data.
First off, arguing that the Happy Birthday situation is representative of “the purest form of the institution” is rather disingenuous when I spent the bulk of the post (5800 bytes as you pointed out) showing that it was likely a sham. It likely never qualified for copyright and any ownership claims have likely expired.
Furthermore, does not and never represented “absolute ownership of abstract ideas”. In fact, Section 102 says quite plainly:
“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
Copyright represents the expression of an idea, not the idea itself. Though I agree that this case highlights problems with the current system, misrepresenting both the case and what copyright protects serves neither the purpose of creators or reformers. It just muddies the discussion.
Finally, I don’t share your connection with the ease that which something can be copied and the fact it should be copied. You go to great lengths to show that these files are easily copied by computers. That is a known fact. But just because something can easily be copied does not change the time, energy and expense that went into creating it.
I’m not defending Happy Birthday. But saying it’s trivial to copy something has no bearing on the creativity and work that went into making it. I can fit a novel on a floppy disk, does that change the fact it can take years to make one?
When you look at copyright from the solely technical aspect, you miss the human side and that is always what copyright has been about. I’m not saying its perfect and there is not room for improvement. But nothing is gained by looking at just one side of the issue.
Are you a lawyer for Time Warner? Because that's the only way your completely nonsensical arguments could possibly make any sense.
This article is very interesting. I use to think this tune was public domain until I read this article. I wonder how many more people think that this song is public domain.
Most, I think do. It's a common "useless fact" that you see in trivia books and Web sites. Knowledge about this is very rare it seems.
This article is very interesting. I use to think this tune was public domain until I read this article. I wonder how many more people think that this song is public domain.
Most, I think do. It’s a common “useless fact” that you see in trivia books and Web sites. Knowledge about this is very rare it seems.
vdhash