The “Happy Birthday” Racket

The whole point of copyright is to protect a creator until such time he/she/it realizes a profit on their creation for a reasonable amount of time. Once that time has expired, the work moves into the public domain so everyone may use it. This is why we can freely use the writings of Shakespeare, the music of Beethoven and other great artistic works.

The length of time a work remains under copyright protection varies from country to country. It usually expires along the lines of 50 to 75 years from the death of the creator. This allows the creators’ descendents to reap some benefits as well.

Somewhere along the line, though, this notion has been perverted and corrupted, thanks largely to the Disney Corporation. The first appearance of Mickey Mouse was November 18, 1928, so those earliest cartoons should have passed into the public domain years ago. However, as the result of extensive lobbying, the US Government passed something called the Copyright Term Extension Act (colloquially known as the Mickey Mouse Protection Act–seriously), those cartoons and comics will remain under copyright until 2023. (There’s another issue of trademark, but let’s not go there right now.)

This brings me to the issue of “Happy Birthday.”

I was shocked a few weeks back when an episode of Family Guy actually featured the family singing the song to Peter. “How much did that cost?” I wondered. “‘Happy Birthday’ is still under copyright. Warner Chappell must have soaked them!”

That’s right: a song written by a couple of sisters in 1893 is still under copyright. It cannot be performed publicly in any way (including in restaurants, which explains why all those chain places have their own birthday songs) without paying Warner Chappell a royalty.

This madness might soon come to an end.  For a full explanation, let’s go to the FYI Music News newsletter.

A federal judge in California is deliberating on the validity of a decades-old copyright  claim on “Happy Birthday to You”  that has millions of dollars resting in the balance.

Warner-Chappel Music Publishing is claiming ownership of the age-old song as part of its Birch Tree Group catalogue, which it acquired in 1988. 

The latest legal challenge has been filed by a California musician, a film producer and 2 New York music producers.  Ownership, they claim, resides in the public domain. At stake is a reported US$25M, which is what the Guinness record-holding most popular song spins off annually.

Warner-Chappell gets between ‘a few thousand” and $50K each time the song is used in a film, and between $750 and $5K for television programs.

The song was written in 1893 by two schoolteaching sisters from Lexington, KY, Patty Smith Hill and Mildred J. Hill, who first wrote it as ”Good Morning to You,” a classroom greeting. The ‘birthday’ lyrics were added later.

The ownership or lack thereof has been in dispute since 1998.

“For He’s A Jolly Good Fellow” is recognized as the 2nd most popular song in the English language, followed by “Auld Lang Syne” —both in the public domain, although Warner-Chappel has a claim on the melody contained in the former. The latter was penned by Scottish poet Robert Burns in 1788.

Let’s see what happens. Subscribe to FYIMusicNews.ca here.

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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