The Original Happy Song: Now Free for All
While it has never topped the charts of the Billboard 100, the Happy Birthday song is arguably one of the most popular songs, if not the most popular song, in history. The Guinness Book of World Records declared it as the most frequently sung in the English language, accompanying other musical works such as Auld Lang Syne and For He’s a Jolly Good Fellow. When inducted into the Songwriters Hall of Fame in 1996, it was boasted to have trounced the output of the “three B’s” combined, Beethoven, Bach and the Beatles, whose works are still universally recognized and revered today. Nearly 120 years after the melody for the popular tune was composed, Happy Birthday has been embroiled in controversy about who owns the song: the public or one of the world’s largest music powerhouses.
Against this backdrop, Happy Birthday has made its owners quite happy over the years, while leaving many others mad. There are two copyrights related to musical works: one copyright in the musical composition and another in the sound recording. Owners of musical composition copyrights enjoy exclusive rights to reproduce and distribute the work in copies, in addition to perform the work publicly.
Warner/Chappell (formerly Warner Communications) acquired rights in the musical composition of Happy Birthday in 1988, along with approximately 50,000 others songs, for a price tag of $25 million. And since that time, with its exclusive rights in Happy Birthday alone, Warner/Chappell has been able to collect an estimated $2 million a year in revenue from film and television fees. To date, according to the Internet Movie Database (IMDB), the song has been credited in 453 soundtracks, dating back to the early 1930’s. Warner/Chappell has vigorously enforced its performance rights in the song, most notably when its PRO (performance rights organization) ASCAP went after the Girl Scouts for campfire performances of the song. In light of the public outrage and looming PR crisis, the company backed down.
The restaurant industry, for the most part, has avoided performing the song for fear of Warner/Chappell’s enforcement. To avoid paying a license to wish their customers a happy birthday or be liable for hefty infringement damages, many restaurants have instead come up with their own festive songs. After all, Warner/Chappell does have exclusive performance rights under the Copyright Act.
Those customs and traditions may no longer be necessary because of a recent decision, which, if upheld, would solidify the controversial tune’s place in the public domain. On June 13, 2013, documentary filmmaker Jennifer Nelson filed a class action suit against Warner/Chappell in federal court in the Southern District of New York, under her production company’s name, Good Morning to You Productions, seeking to invalidate the defendant’s copyright in Happy Birthday. Prior to filing the action against Warner/Chappell, Nelson filmed a documentary about the history of the Happy Birthday song and sought permission from Warner/Chappell to use the song in her film. Nelson reported that Warner/Chappell demanded a six-figure sum to license the song.
A week after Nelson’s filing, Rupa Marya, leader of San Francisco-based band the April Fishes, filed a federal lawsuit against Warner/Chappell in the Central District of California. Marya and her band recorded a live version of Happy Birthday to include on a forthcoming album, when Warner/Chappell contacted the group to collect $455 in fees for the right to use the song. Marya filed suit against the company to challenge the fee and to invalidate Warner/Chappell’s copyright in the song. Nelson subsequently filed her action in the Central District of California, and both Nelson and Marya’s actions against Warner/Chappell were eventually consolidated into one case, Marya v. Warner/Chappell Music, Inc.
In the parties’ cross motions for summary judgment, the court ruled in favor of Marya and Nelson on September 22, 2015, effectively invalidating Warner/Chappell’s copyright in the Happy Birthday song. The court essentially held that Warner/Chappell’s purchase of the rights in Happy Birthday lyrics, was an interest its seller did not own, i.e. the seller did not have a valid copyright in Happy Birthday when it was sold in 1988.
Indeed, key to the court’s analysis was the song’s storied history. While Warner/Chappell’s claim to the song came about in 1988, the song’s origins date back to the 1800s. In 1889, Louisville, Kentucky schoolteacher Patty Smith Hill and her musician sister Mildred J. Hill, began writing lyrics and composing songs that could be sung easily by Patty’s kindergarten students. One of those songs was Good Morning to All, written in 1893, and was compiled with other songs in a manuscript entitled Song Stories for the Kindergarten. The Hill sisters assigned their rights in the book to publisher Clayton Summy, who filed for copyright registration in 1893.
Good Morning would later evolve into the popular and universally recognized Happy Birthday song, sharing the same melody. But as the Marya court noted, just exactly when the lyrics to Happy Birthday were written is unclear. The lyrics to Happy Birthday were not featured in Song Stories, and as the court pointed out, the first known publication of all the lyrics was in the book The Elementary Worker and His Work, published in 1911. But in the book, there was no attribution to the author or authors of the lyrics, and only a mention that Happy Birthday shared the same melody as Good Morning, as featured in Song Stories.
Of particular note was the court’s discussion of Happy Birthday’s public performance in the Broadway musical, As Thousands Cheer. In 1934, almost a year after the play opened on Broadway, a third Hill sister, Jessica, filed suit for copyright infringement for her interest in Good Morning, not the lyrics to Happy Birthday. The Marya court noted the deposition testimony of Jessica Hill’s sister Patty, who had written Good Morning. Patty Hill testified that she had written the lyrics to Happy Birthday near the time Good Morning was created by her and late sister Mildred. A couple of years later, the Clayton F. Summy Company registered two works entitled Happy Birthday to You with the Copyright Office in 1935, under registration numbers E51988 and E51990.
Warner/Chappell claimed that the E51990 registration was the publication for which it had received the copyright interest in the Happy Birthday lyrics. But the Marya court noted there was no record of a contractual agreement between Summy Co. and the Hill sisters regarding these registrations. The court said the only historical information regarding these registrations, particularly the E51990 registration, was another lawsuit. In 1942, the Hill Foundation, set up by Jessica and Patty Hill, filed suit against the Summy Co. in the Southern District of New York. The foundation alleged that in addition to Summy Co. having an agreement with Mildred and Patty for copyright interest in Song Stories and Good Morning, (the First Agreement), Summy had also entered into another agreement with Jessica Hill from 1934 to 1935 (the Second Agreement).
The Hill Foundation’s amended complaint alleged that Summy Co. had granted licenses to movie and play producers without authorization. The foundation argued that when Mildred and Patty Hill entered into the First Agreement with Summy Co. in the 1890’s, the commercial viability of motion pictures was unknown. Therefore, the use of the Hill sisters’ works from Song Stories in motion pictures was not contemplated.
As the cause of action related to the Second Agreement with Jessica Hill, the foundation alleged that Summy Co. was granted licenses for several piano arrangements of the “song variously entitled Good Morning to All or Happy Birthday to You.” The source of contention for the Hill Foundation was Summy’s secret licensing to movie and play producers.
The suit was settled in 1944 with the parties entering a new agreement (Third Agreement) in which the Hill sisters, through their foundation, assigned all of their rights in eleven copyrights, including the E51990 and E51988 registrations, and the Song Stories copyright to Summy Co.
In denying Warner/Chappell’s motion for summary judgment, the court concluded that the Hill sisters had only granted Summy Co. the rights to the melody of Happy Birthday and the rights to piano arrangements based on the melody, not the lyrics:
For decades, with the possible exception of the publication of The Everyday Song Book in 1922, the Hill sisters did not authorize any publication of the lyrics. They did not try to obtain federal copyright protection. They did not take legal action to prevent the use of the lyrics by others, even as Happy Birthday became very popular and commercially valuable. In 1934, four decades after Patty supposedly wrote the song, they finally asserted their rights to the Happy Birthday/Good Morning melody—but still made no claim to the lyrics.
Therefore, because Summy Co. never acquired the rights to the Happy Birthday lyrics, Warner/Chappell never obtained a valid copyright to the Happy Birthday lyrics, and restaurants, movie producers, and the Girl Scouts are free to publically perform the popular tune in the public domain, at least for now. Warner/Chappell has asked Judge George King to reconsider his September ruling or for permission to file an immediate appeal. Meanwhile, the plaintiffs contend that Warner/Chappell should return the millions of dollars it has generated in licensing fees over the decades. Who will truly be happy in the end? Only time will tell.