“Happy Birthday to You,” the most recognizable song in the history of the English language, has been freed from its copyright shackles. In the normally staid world of music publishing, news doesn’t get any bigger. This long saga is now over and it’s going to make a great ending to the movie.
Hold on. Back up.
“Happy Birthday” was born around 1890 when two Kentucky sisters, Patty and Mildred Hill, created the song (although maybe not the melody) to help the kids in their Louisville how to sing. They changed the original lyrics of “Good Morning to All” to “Happy Birthday.”
Normally a song this old should have long moved from being protected copyrighted material into the public domain. But because of a series of legal developments and the timing of the song’s copyright registration in 1935, “Happy Birthday” became the property of music publishing giant Warner/Chappell which has managed to retain ownership for decades. That means anytime anyone wanted to perform the song in public, royalties needed to pay Warner/Chappell royalties.
This explains why “He’s a Jolly Good Fellow” is often sung in movies and TV shows. It also explains why restaurants make up those ridiculous birthday songs for their staff to sing. No one wanted to incur the wrath of Warner/Chappell’s lawyers and be forced to pay royalties or get sued for unauthorized performances.
Copyright on the song wasn’t supposed to expire in the US until 2030, 130 years after it was written. (“Happy Birthday” was set to slip into the public domain at the end of next year, but that’s another story.) If that seems ridiculous, you’re right.
This nonsense became the subject of a documentary by Robert Siegel. Naturally, he couldn’t cover the story properly without licensing the song for the film. When he approached Warner/Chappell, they quoted him $1,500. Siegel freaked out and sued. That’s how we got to where we are today. (By the way, other filmmakers have been asked to pay as fees as high as the low six figures. Craziness.)
The case wound its way through the courts with Warner/Chappell standing firm on their ownership, which was based largely on that 1935 registration. But it turns out that the song first appeared appeared in sheet music as early as 1890, screwing with Warner/Chappell claims.
Yesterday, a US judge ruled that Warner/Chappell owned the copyright to a very specific piano arrangement of the song and not the song itself, citing an arrangement between the Hill sisters and Summy and Co, the first holder of the copyright. Crucially, this means that Warner/Chappell doesn’t own the lyrics to “Happy Birthday to You.”
This will make a fantastic conclusion to Siegel’s film. And unless Warner/Chappell wins on appeal (something that’s unlikely), we can all sing “Happy Birthday to You” without fear of being sued.