“Happy Birthday to You”: Still Private Property

When making the case that the terms of copyright protection are too long – currently, an author’s lifetime plus 70 years – it is not uncommon to note that “Happy Birthday to You” is still under copyright.  Yes, that ubiquitous little ditty of folk culture is a piece of private property.  It should inspire a fair bit of outrage that a song first published in 1893 will remain copyrighted until 2030. 

While you won’t get dunned for singing it at home, the private ownership of the song means that many restaurants such as Red Lobster and Outback Steakhouse have had to develop their own “birthday songs” in order to avoid paying a “public performance” licensing fee to ASCAP.  If a documentary film or TV broadcast (such as the news) carries a snippet of “Happy Birthday,” the producers must pay a fee to Summy-Birchard, the current owner of the song, which is also a subsidiary of Warner/Chappell Music Inc., which is the publishing arm of Warner Music Group, which itself is owned by Time Warner.  

Because “Happy Birthday to You” is such a ubiquitous song – adapted into countless foreign languages and cultures – and because it has such a tangled musical and copyright history, Robert Brauneis, a law professor at The George Washington University Law School, decided to write the definitive history of the song, “Copyright and the World’s Most Popular Song,”  His fascinating and exhaustive essay, (GWU Legal Studies Research Paper No. 1111624, October 14, 2010), tells everything you might want to know about the song’s musical origins, its use in films and advertisements, its copyright history, its worldwide popularity, and the implications for copyright law today.  Brauneis even mucks around in the little-known archives of the two sisters responsible for the song, Mildred and Patty Hill, and scours many dusty research corners of business, law and musical history to extract an illuminating story that requires 69 pages and 320 footnotes.

I won’t attempt to tell that whole story, but it is worth noting a few surprises.  The most notable one is that “Happy Birthday to You” was not simply a folk song that mysteriously emerged and spread.  It was carefully written by the two Hill sisters, one of whom was a kindergarten teacher, in order to have an easy-to-learn but musically interesting song for young children to sing.  The sisters were indeed influenced by “Negro music” of the time and by a song with a similar melody, “Good Morning to All,” originally published in 1858, which itself was similar to a lot of songs floating around in the culture.  But there are significant differences between “Good Morning to All” and “Happy Birthday to You,” as musical historians note.  And those differences are probably enough to establish the Hills' “original authorship" under copyright law.  So give Mildred and Patty Hill their due in “creating” the song, despite the many important influences from public-domain works, folk culture and copyrighted music.

The other big surprise is that the song’s copyright may not even be valid, according to Robert Brauneis.  As he writes, “There are serious questions about whether a court would find 'Happy Birthday to You' to still be under copyright, due to difficulties with proving authorship of the song, with potentially improper copyright notice upon first publication, and with renewal applications that seem only to cover particular arrangements of the song rather than the song itself.” 

Yet because no one has a big enough financial incentive to challenge the copyright in court, says Brauneis, and because copyright law offers no easy way to invalidate a dubious copyright, “Happy Birthday to You” remains locked up as private property until 2030.  Meanwhile, the Warner Music Group rakes in about $5,000 a day in royalties on the song, or nearly $2 million a year.

This is not just a commercial shake-down of the public for something that it ought to be in the public domain.  It affects our culture and free speech.  One reason that the civil rights documentary “Eyes on the Prize” could not be re-released was because it contains footage of people singing “Happy Birthday to You” to Martin Luther King Jr. – triggering a rights fee that the producers could not afford to pay. 

Robert Brauneis notes that many copyright critics have cited “Happy Birthday to You” without confirming all the details of its history, implying that if the copyright were legally valid, Time Warner should be entitled to all its royalties, even today.  I say nonsense.  A strict reading of the law may uphold such an interpretation, but the point is that the moral and empirical justifications for such lengthy copyright protection are highly dubious. The fact that the song’s actual copyright may be invalid, but that there is no easy way for the public to rectify this injustice, is equally enraging.  (No wonder the public is so contemptuous of Hollywood and the recording industry's moral sanctimony about copyright law!)

It is an offense against a free and democratic culture that a song copyrighted in 1893 is still treated as private property, particularly when its commercial value stems mostly its non-market circulation in folk culture.  For that reason alone, “Happy Birthday to You” should remain an iconic symbol of a copyright system out of control -- a system that arrogantly dismisses attempts to make it more responsive to contemporary creative culture, digital technology and public entitlement.

Update, June 14, 2013:  Finally!  A lawsuit against Warner/Chappell Music, Inc., to try to affirm that the copyright of "Happy Birthday" is invalid and that the song is in the public domain!  The plaintiff is filmmaker Jennifer Nelson, who is making a film about the song.  Here's the NYT account.