Court Monitor

Freedom for 'Happy Birthday' after 80 Years

The most popular song in the world is the familiar "Happy Birthday," which hundreds of millions sing every year by heart: "Happy Birthday to you, Happy Birthday to you. . . ." Some may be astonished to learn that restaurants, theater groups, movie producers, and other businesses have been forced for decades to pay royalties for their every use of this song, based on a 1935 copyright.

Watch closely during birthday celebrations on television and notice how rarely "Happy Birthday" is sung. That's because the current owner of its 1935 copyright, music publisher Warner/Chappell, has demanded royalties for such uses to the tune of about $2 million overall annually.

When there is no way around singing "Happy Birthday" in a movie, the producer is socked with a royalty charge. For example, the acclaimed documentary "Hoop Dreams" used the Happy Birthday song for merely 9 seconds, but that resulted in a whopping $5,000 royalty charge. "It was quite expensive for us at that time and with our budget," lamented its filmmaker Steve James.

Now a recent decision by a federal district court in California has ended the copyright claims to "Happy Birthday" and freed it from decades of restrictions of its use. Marya v. Warner/Chappell Music, Inc., 2015 U.S. Dist. LEXIS 129575 (C.D. Cal. Sep. 22, 2015). The court painstakingly traced the history of the song and concluded that it is not under a valid copyright after all.

The song's origin dates back at least to 1893, when two sisters named Mildred and Patty Hill composed "Good Morning" for schoolchildren, having lyrics very similar to Happy Birthday: "Good morning to you, Good morning to you, Good morning dear children, Good morning to all." Who would have imagined it would become, with the substitution of "Happy Birthday" wording, the most popular song in the world? Patty Hill, in a deposition she did about 80 years ago, stated that when a child had a birthday in the school, Patty would change the lyrics from "Good morning to you" to "Happy Birthday to you."

Mildred and Patty Hill assigned their rights in "Good Morning" to Clayton F. Summy, who published it in a songbook entitled Song Stories for the Kindergarten, and registered a copyright for it in 1893. About 40 years later, in 1935, his company registered a copyright of the lyrics to "Happy Birthday," and the royalty demands to this day are based on that copyright.

But the federal court found evidence of multiple prior publications of the "Happy Birthday" song, including uses in old movies, which predate the 1935 registration on which the royalty claims are based. During these earlier publications of "Happy Birthday," the Hills "did not try to obtain federal copyright protection [and] did not take legal action to prevent the use of the lyrics by others, even as Happy Birthday became very popular and commercially valuable."

Thus the 1935 copyright registration in the lyrics was not valid, and many millions in royalties collected should be refunded. So, "Happy Birthday" to the start of freedom for this song!