Reminder: Despite What You May Have Heard, Happy Birthday Should Be In The Public Domain

from the sing-it-loud dept

Fri, Oct 29th 2010 5:20pm — Mike Masnick

A little over two years ago, we had an interesting discussion about the copyright status of the song "Happy Birthday." Now, you may have heard that the song is covered by copyright, by the estate of Patty and Mildred Hill (or, to quote a really old Aaron Sorkin-penned TV show: "wait, it took two people to write that song?"). It apparently generates about $2 million per year -- as any TV show or movie or restaurant or whatever that sings the song is supposed to pay up (side note: this is why many restaurants have their "own" happy birthday songs).

However, in that discussion we pointed to a paper that researched the history of the copyright on the song, and found that it should almost certainly be in the public domain. The Hill sisters had taken the melody from elsewhere (so, there should be no copyright on the melody) and written a song called "Good Morning to All." Someone else later added the lyrics for "Happy Birthday." Years later, there were a series of complex legal wranglings (and some underhanded maneuvers), and basically two parties, neither of whom realistically held the publishing rights to the song we know as Happy Birthday (but who probably did hold the rights to certain derivative works that no one performs any more), effectively appeared to agree to team up and simply to pretend via those derivative works that they did hold the publishing rights on "Happy Birthday," and no one has ever challenged them. In the 1960s, when the copyright was renewed, the company claiming to hold the publishing rights at the time failed to provide the necessary documentation to prove it held the rights.

Anyway, I bring it up again, because Ben Sisto has just done a really nice job recapping many of the details of the story, noting that Happy Birthday is almost certainly in the public domain:

To recap: due to Summy-Birchard Co.'s failure to properly renew in 1962, GMTA/HBTY would have entered the public domain. If this failure were to be dismissed as an excusable accident, we are still absent any document which proves beyond doubt that Mildred and or Patty Hill, the most plausible authors of the GMTY/HBTA combination, actually wrote it. Absent that proof, WMG only has an interest in the additional copyright matter (piano solo and 2nd verse) registered to Orem & Forman in 1934. While valid, those are separate matters from the GMTA/HBTY combination. A rote, uncreative variation on the earlier work can not be registered as a derivative; there has to be some added originality or editorial insight. The GMTA/HBTY as we know it today appeared regularly in print prior to the 1930s. Neither Orem or Forman's mostly forgotten additions had any impact on it's market potential. I believe GMTA/HBTY or simply Happy Birthday to You is currently a public domain work.

Sisto adds one additional, and very telling bit of research to the original paper as well, noting that Patty Hill had a reputation for being meticulous in business dealings, and that the Hills had properly registered copyrights on other works, just not Happy Birthday -- implying that they had not written it:

As an aside, I suggest reading Agnes Snyder's 1972 paper for the ACEI, Dauntless Women in Childhood Education. In it, Snyder paints a picture of Patty Hill as a strong, dedicated intellectual who rose from a humble background to become one of the most important voices speaking on behalf of progressive early childhood education in America. After reading it, I became even more convinced the Hill sisters didn't pen the GMTA/HBTY combination. In all aspects of their professional careers they were articulate and exact. While perhaps it's not court-worthy evidence, it becomes hard to imagine GMTA/HBTY would have simply slipped through the cracks while their other works received protection through proper notice and registration. It seems more the case that the Hills felt entitled to rights due to HBTY's similarity to GMTA; and as much as I've come to respect the Hills I'd stick to the argument that similarity isn't enough to claim authorship.

Unfortunately, of course, no one's going to challenge this and the current publisher, Warner Music, is surely going to insist that it does hold the proper rights, so the world goes on with the myth that Happy Birthday is protected by copyright.

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Filed Under: copyright, happy birthday, public domain

24 Comments

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Anonymous Coward, 29 Oct 2010 @ 5:59pm

Happy Birthday to You is protected by copyright. And by "copyright", I mean "the threat of having to settle or go through with an expensive trial that you can't afford".
As Joshua would say, "What's the difference?"
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ChurchHatesTucker (profile), 29 Oct 2010 @ 6:03pm

Re:
What's the difference to you?
What's the difference to you?
You still pay a lawyer.
What's the difference to you?
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Wolfy, 29 Oct 2010 @ 7:17pm

Hilarious, and sad at the same time, but true.
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Prashanth (profile), 29 Oct 2010 @ 8:03pm

Re: Re:
May WMG sue you,
May WMG sue you!
Please do become poor, and
May WMG sue you!

How poor are you now?
How poor are you now?
Have we sued you enough?
How poor are you now?

Are you [all of the following in millions of dollars in debt] 1, are you 2, are you 3, ... [ad infinitum]?
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RAGE, 29 Oct 2010 @ 11:08pm

So ridiculous. Such bullshit. Thanks for bringing it to our attention, but it's true; who has the legal resources (AKA money) to go up against WMG? And they're not going to let something like that go easily.
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Anonymous Coward, 30 Oct 2010 @ 5:25am

Supposing there is no new Mickey Mouse Protection Act, when will these copyrights finally expire for good in the USA?
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Josef Anvil (profile), 30 Oct 2010 @ 6:38am

Who cares?
As sad as it is that anyone would claim that Happy Birthday is copyrighted, I don't think the vast majority of us really care.

It has to be the most infringed upon song in the history of music if it is copyrighted. Now I have to go through YouTube and see if there are any happy birthday videos that have been hit with DMCA takedown notices.

I really would love for WMG to begin suing everyone who has infringed on this song. They will be sending out more legal notices than HADOPI in France if they tried.
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Anonymous Coward, 30 Oct 2010 @ 9:22am

Another one bites the dust!
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Ben Sisto, 30 Oct 2010 @ 10:54am

Happy Birthday, Edgar
Thanks for the repost, Mike!

As I mention at the end of the article, Robert Brauneis reports in "Copyright and the World's Most Popular Song" that the Association for Childhood Education International, co-founded by Patty Smith Hill, filed IRS Form 990�s for 2004, 2005, and 2006 claiming HBTY royalty income of $584,352; $631,866; & $738,510 respectively.

They're getting the $ because the Hill Foundation Inc. had an agreement with Clayton F. Summy to share royalties from an out-of-court settlement decades ago. The ACEI's eligibility to do so however, is questioned by the same case made against Warner Music Group. If we assume the ACEI keeps getting royalties we're talking a potential $5,843,520.00 - $7,385,100.00 before 2030. That fact complicates matters for me, personally. While I don't feel WMG should be allowed to collect a potential $14.75 million over the next decade if they're not legally entitled to, I don't want to throw a brick at the ACEI either.

So the best thing to do: get more copyright lawyers fact-checking and debating the Brauneis paper. I have yet to find, but would love to read a counter-argument made with as much detail.
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Anonymous Coward, 30 Oct 2010 @ 10:55am

public domain in canada
muhaha
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Legal Scholar, 30 Oct 2010 @ 2:12pm

Re:
"What's the difference?"

There is a huge difference, just like there is a huge difference between an executive agreement and a treaty. Sure, the result maybe the same, but there is a huge difference between the two. It's disingenuous for you to just ignore the huge difference and pretend that it doesn't exist.
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james43062, 30 Oct 2010 @ 9:46pm

happy birthday
hey, from the fine copyright folks:

we saw your kids last birthday party... nice hats. the cake looked great and you owe us fifty bucks.
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Anonymous Coward, 31 Oct 2010 @ 12:34am

Funny, I never heard or thought it wasn't public domain. Most people don't think it's copyrighted, and treat it as such.
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Charles Grossman (profile), 31 Oct 2010 @ 5:42am

Where do these royalties come from?
Restaurants use their own birthday songs, movies rarely include "Happy Birthday", and even kid-oriented radio stations don't play recordings of this song. Are people paying to download it? Where are the royalties coming from?
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NullOp, 31 Oct 2010 @ 7:15am

HB
Happy Birthday is the definitive birthday song. It is ALREADY in the PD by default. There is nothing anyone can do to change this. The people have decided this, period.
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Anonymous Coward, 31 Oct 2010 @ 11:19am

I think 500 years from now, this same argument will still persist. Even if copyrights do not get extended forever, who would actually admit that their copyright expired. The fear will live on.
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Ben Sisto, 31 Oct 2010 @ 12:56pm

Re: Birthday parties
I believe it's not a violation of law to have a private singing of the tune at say, your apartment for a friend's birthday. Royalties are from licensed use such as in films, plays, TVs shows commercials, a toy that plays the song, etc. These are all versions that would include lyrics; the base melody is 100% public domain.
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marak (profile), 31 Oct 2010 @ 1:58pm

Hmm well my fiancee's birthday is coming up soon, should i send them a cheque now - for performance of course(were going todo a badly sung cover version) - but their work is important, and i cannot condone artists losing income from me being a dirty pirate.

/sarcasim (did i REALLY need to put that part in? :P)

and again, it took TWO people to write this?
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tax cpe, 31 Oct 2010 @ 6:54pm

Re:
I don't think it's going to expire ever, considering the companies who owns these copyrights.
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Paul (profile), 1 Nov 2010 @ 7:58am

Why doesn't someone sing "Happy Birthday" to the Hill Sisters...
... and have the music played constantly in the background of a discussion of why this song is most certainly in the Public Domain.

One might assume that someone like the EFF or even the ACLU (since this is most certainly theft from the public commons) help fight the resulting copyright suit.
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Daniel Restrepo, 2 Nov 2010 @ 9:57am

It might be a bit exaggerated
It might be a bit exaggerated, but I think that kind of discussions are kinda philosophical.
if you use it for commercial purposes must pay the required amount, but if it transcends to something familiar or non-commercial, legal procedures are ridiculous.
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sabistin (profile), 14 Jun 2012 @ 11:30pm

Birthday Quotes
Happy birthday songs must be unique as the are going to which someone special so these types of problems like copy wright are usual but have to cut off,we have a class of great Birthday Quotes and all other.
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Tim Bird, 14 Feb 2014 @ 11:26am

Re: Why doesn't someone sing "Happy Birthday" to the Hill Sisters...
Because they both died over 50 years ago.
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