The “Happy Birthday” Lawsuit: Sh*t’s Gettin’ Real

More than a hundred years ago, a couple of sister schoolteachers, Patty Smith Hill and Mildred Hill, wrote a birthday wishes song based on a traditional melody entitled “Good Morning to All.” In 1893, they assigned the publishing rights to a company owned by a guy named Clayton Summer.  The first time anyone remembers the music and lyrics appearing anywhere in print was 1912, although they had probably shown up somewhere before that.  In any case, it wasn’t until 1935 that Clayton’s company filed a copyright registration for the song.

That date–1935–is important. From at least that point on, royalties could be collected every time “Happy Birthday” was performed live or in any recorded fashion.

In 1988, publishing giant Warner/Chappell bought out Clayton’s company for $25 million. Their legal opinion is that since the song was registered in 1935, “Happy Birthday” will not extend into the public domain until 2030, 137 years after was written. This means they feel entitled to royalties generated from the song until then. This explains why so many movies and TV shows use alternate birthday songs like “For He’s a Jolly Good Fellow” in scenes where someone is having a birthday. It also explains why certain restaurants force their employees to sing custom birthday songs. No one wants to pay for the privilege of using “Happy Birthday.”

But does Warner/Chappell actually have the right to claim copyright over “Happy Birthday?” This is the target of a documentary film and court case which alleges that Warner/Chappell has falsely claimed copyright to the song. The case has been dragging on for two years.  But now, a smoking gun that seems to favour the plaintiff. From The Hollywood Reporter:

On the eve of a judge’s ruling, attorneys find key evidence tucked away in the files of the opposing side. They rush to court with word of their bombshell discovery. If this sounds like the third act of a Hollywood movie, it very well might become one.

The filmmakers working on a documentary about the world’s most popular song, “Happy Birthday to You,” and currently suing Warner/Chappell for the right to use the song in the documentary without any license fee, filed court papers on Monday touting newly uncovered evidence that “proves conclusively that there is no copyright to the Happy Birthday lyrics.”

The “proverbial smoking gun,” as the plaintiffs put it to a California judge, is a book of children’s songs that comes straight out of Warner/Chappell’s digital library.

This is juicy stuff. Keep reading.

Alan Cross

is an internationally known broadcaster, interviewer, writer, consultant, blogger and speaker. In his 30+ years in the music business, Alan has interviewed the biggest names in rock, from David Bowie and U2 to Pearl Jam and the Foo Fighters. He’s also known as a musicologist and documentarian through programs like The Ongoing History of New Music.

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