A Happy Birthday for Whom?

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:

  1. Unoriginal: The song bears strong resemblance to several works that came before it, including “Happy Greetings to All” and “Good Night to You All”.
  2. 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.
  3. 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…

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