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.
Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, happy birthday, public domain


Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. identicon
    Wolfy, 29 Oct 2010 @ 7:17pm

    Hilarious, and sad at the same time, but true.

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Essential Reading
Techdirt Insider Chat
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.