Reminder: Despite What You May Have Heard, Happy Birthday Should Be In The Public Domain

from the sing-it-loud dept

A little over two years ago, we had an interesting discussion about the copyright status of the song “Happy Birthday.” Now, you may have heard that the song is covered by copyright, by the estate of Patty and Mildred Hill (or, to quote a really old Aaron Sorkin-penned TV show: “wait, it took two people to write that song?”). It apparently generates about $2 million per year — as any TV show or movie or restaurant or whatever that sings the song is supposed to pay up (side note: this is why many restaurants have their “own” happy birthday songs).

However, in that discussion we pointed to a paper that researched the history of the copyright on the song, and found that it should almost certainly be in the public domain. The Hill sisters had taken the melody from elsewhere (so, there should be no copyright on the melody) and written a song called “Good Morning to All.” Someone else later added the lyrics for “Happy Birthday.” Years later, there were a series of complex legal wranglings (and some underhanded maneuvers), and basically two parties, neither of whom realistically held the publishing rights to the song we know as Happy Birthday (but who probably did hold the rights to certain derivative works that no one performs any more), effectively appeared to agree to team up and simply to pretend via those derivative works that they did hold the publishing rights on “Happy Birthday,” and no one has ever challenged them. In the 1960s, when the copyright was renewed, the company claiming to hold the publishing rights at the time failed to provide the necessary documentation to prove it held the rights.

Anyway, I bring it up again, because Ben Sisto has just done a really nice job recapping many of the details of the story, noting that Happy Birthday is almost certainly in the public domain:

To recap: due to Summy-Birchard Co.’s failure to properly renew in 1962, GMTA/HBTY would have entered the public domain. If this failure were to be dismissed as an excusable accident, we are still absent any document which proves beyond doubt that Mildred and or Patty Hill, the most plausible authors of the GMTY/HBTA combination, actually wrote it. Absent that proof, WMG only has an interest in the additional copyright matter (piano solo and 2nd verse) registered to Orem & Forman in 1934. While valid, those are separate matters from the GMTA/HBTY combination. A rote, uncreative variation on the earlier work can not be registered as a derivative; there has to be some added originality or editorial insight. The GMTA/HBTY as we know it today appeared regularly in print prior to the 1930s. Neither Orem or Forman’s mostly forgotten additions had any impact on it’s market potential. I believe GMTA/HBTY or simply Happy Birthday to You is currently a public domain work.

Sisto adds one additional, and very telling bit of research to the original paper as well, noting that Patty Hill had a reputation for being meticulous in business dealings, and that the Hills had properly registered copyrights on other works, just not Happy Birthday — implying that they had not written it:

As an aside, I suggest reading Agnes Snyder’s 1972 paper for the ACEI, Dauntless Women in Childhood Education. In it, Snyder paints a picture of Patty Hill as a strong, dedicated intellectual who rose from a humble background to become one of the most important voices speaking on behalf of progressive early childhood education in America. After reading it, I became even more convinced the Hill sisters didn’t pen the GMTA/HBTY combination. In all aspects of their professional careers they were articulate and exact. While perhaps it’s not court-worthy evidence, it becomes hard to imagine GMTA/HBTY would have simply slipped through the cracks while their other works received protection through proper notice and registration. It seems more the case that the Hills felt entitled to rights due to HBTY’s similarity to GMTA; and as much as I’ve come to respect the Hills I’d stick to the argument that similarity isn’t enough to claim authorship.

Unfortunately, of course, no one’s going to challenge this and the current publisher, Warner Music, is surely going to insist that it does hold the proper rights, so the world goes on with the myth that Happy Birthday is protected by copyright.

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Comments on “Reminder: Despite What You May Have Heard, Happy Birthday Should Be In The Public Domain”

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Josef Anvil (profile) says:

Who cares?

As sad as it is that anyone would claim that Happy Birthday is copyrighted, I don’t think the vast majority of us really care.

It has to be the most infringed upon song in the history of music if it is copyrighted. Now I have to go through YouTube and see if there are any happy birthday videos that have been hit with DMCA takedown notices.

I really would love for WMG to begin suing everyone who has infringed on this song. They will be sending out more legal notices than HADOPI in France if they tried.

Ben Sisto (user link) says:

Happy Birthday, Edgar

Thanks for the repost, Mike!

As I mention at the end of the article, Robert Brauneis reports in “Copyright and the World’s Most Popular Song” that the Association for Childhood Education International, co-founded by Patty Smith Hill, filed IRS Form 990?s for 2004, 2005, and 2006 claiming HBTY royalty income of $584,352; $631,866; & $738,510 respectively.

They’re getting the $ because the Hill Foundation Inc. had an agreement with Clayton F. Summy to share royalties from an out-of-court settlement decades ago. The ACEI’s eligibility to do so however, is questioned by the same case made against Warner Music Group. If we assume the ACEI keeps getting royalties we’re talking a potential $5,843,520.00 – $7,385,100.00 before 2030. That fact complicates matters for me, personally. While I don’t feel WMG should be allowed to collect a potential $14.75 million over the next decade if they’re not legally entitled to, I don’t want to throw a brick at the ACEI either.

So the best thing to do: get more copyright lawyers fact-checking and debating the Brauneis paper. I have yet to find, but would love to read a counter-argument made with as much detail.

Ben Sisto says:

Birthday parties

I believe it’s not a violation of law to have a private singing of the tune at say, your apartment for a friend’s birthday. Royalties are from licensed use such as in films, plays, TVs shows commercials, a toy that plays the song, etc. These are all versions that would include lyrics; the base melody is 100% public domain.

marak (profile) says:

Hmm well my fiancee’s birthday is coming up soon, should i send them a cheque now – for performance of course(were going todo a badly sung cover version) – but their work is important, and i cannot condone artists losing income from me being a dirty pirate.

/sarcasim (did i REALLY need to put that part in? :P)

and again, it took TWO people to write this?

Alisa (user link) says:

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