Posted on 2016/10/10 by

Happy Birthday to…Who?: Contested Copyrights and Creative Ownership

In his article, “The Ecstasy of Influence: A Plagiarism”, Jonathan Lethem recounts a story wherein he describes the ‘invention’ of a song by blues legend Muddy Waters. When asked where the inspiration for the song arose, Waters cites five different sources: his own personal creation, sudden inspiration, he heard “a version by Johnson”, his mentor taught it to him, and finally it is simply “a song from the cotton field” (Lethem 60). This anecdote exemplifies what many experts in copyright argue – that the creation of something “new” is always based off inspiration from old. Lethem writes, “blues and jazz musicians have long been enabled by a kind of “open source” culture, in which pre-existing melodic fragments and larger musical frameworks are freely reworked” (60). Lawrence Lessig also says much the same: “Music in particular…has always been about using what went before in a way that empowers creators to do something new” (9). In a similar vein, sisters Mildred and Patty Hill, who taught kindergarten in the late 1890s, provided the inspiration for what was to become one of the most popular songs of all time, Happy Birthday to You.

Though relatively little known to the general population, there is a great deal of controversy surrounding the copyright laws applicable to a song that is no doubt sung often across the globe. Had the usual rules of copyright law been enforced, the song would have been set to enter the public domain on January 1st, 2017, yet Warner/Chappell, the company who owned the song up until earlier this year, expected to hold rights to it until 2030 (Brauneis 3). The history of the copyright surrounding “Happy Birthday to You” is convoluted at best, and is the case most often cited by those who argue that copyright law is too exaggerated and intricate. Though Warner/Chappell have amassed thousands of dollars in movies and television rights every year since 1935 (the year they are said to have first published the song’s sheet music), it is Jennifer Nelson’s lawsuit against Warner/Chappell in 2014 (Good Morning to You Productions vs. Warner/Chappell Music Inc.) that caused the debate to resurface and finally come to a conclusion.

This story begins in 1894, when Mildred and Patty Hill published a book of songs entitled “Song Stories for the Kindergarten” – a collection of relatively simple pieces, easy for young children to learn and sing along to (Brauneis 10). Among the collection was a song by the name of “Good Morning to All”, whose melody would later provide the music for “Happy Birthday to You.” Some critics argue that the sisters borrowed heavily from earlier songs with similar tunes, yet closer inspection reveals that the music and lyric combination were entirely original – a necessary component for the sisters to acquire copyright protection. It is perhaps safe to say however that the sisters were inspired by either folk melodies, or earlier music from various other artists, for as Lethem states, “all ideas are secondhand, consciously and unconsciously drawn from a million outside sources” (68). Nevertheless, the sisters knew enough about copyright law to ensure their booklet of songs fell under copyright protection.

"Good Morning to All" sheet music

“Good Morning to All” sheet music

Though after the sisters’ deaths the rights for the song fell to Jessica Hill, another of their sisters, current copyright laws for created works state that copyright protection terminates 70 years after the death of the author. As Patty Hill, the second of the sisters to pass away, died in 1946, this would mean the song should enter public domain at the end of this year. However, at the turn of the century, in 1907, a company by the name of Summy Co. filed a copyright application for the rights to the song “Good Morning to All” (California Central District Court, Document 187.28) and it is from this point forward that things become tricky. A few years later, in 1911, and seemingly for the first time, the lyrics to “Happy Birthday to You” were paired with the Hill sisters’ melody:

“Upon information and belief, the lyrics to Happy Birthday to You (without the sheet music for the melody) were first published in 1911 by the Board of Sunday Schools of the Methodist Episcopal Church…in The Elementary Worker and His Work, by Alice Jacobs and Ermina Chester Lincoln as follows:…[NOTE: The songs and exercises referred to in this program may be found in these books:…”Songs and Stories for the Sunday School” by Patty Hill]” (California Central District Court, Document 187.28).

Summy Co. decided not to extend the copyright to “Songs and Stories for the Sunday School”, and thus “Good Morning to All” became part of the public domain in 1924. Thus, the foundation and inspiration for the song most widely sung today became available for any and all to use without the need to purchase a license. The same cannot be said for “Happy Birthday to You”, as the joining of new lyrics with old melody precipitated a need for an entirely new copyright license (Brauneis 23).

Over the course of the next few years, the sheet music and lyrics for “Happy Birthday to You” found its way into many different compilations, yet each time without acknowledgement or identification of author. In 1934-35, Jessica Hill “sold and assigned to Summy Co III [a subsidiary of Summy Co.] certain piano arrangements of Good Morning to All, including publishing, public performance, and mechanical reproduction rights, copyright, and extension of copyright” (California Central District Court, Document 187.32). It is important to note here that it is simply the musical arrangement to the original song, and not the lyrics to “Happy Birthday to You” that were under copyright protection at this time. These circumstances were to cause difficulty for Summy Co. III when applying for copyright for the blended version of the song that included both music and lyrics, as the lyrics were never appointed authorship. In 1962, it came time for the renewal of the rights to “Happy Birthday to You”, and it is unclear whether Summy Co. III managed to obtain the proper and necessary renewal for the song to still be considered under copyright protection. That is, they obtained a renewal, however, given that there was never a specific author assigned to the lyrics, it seems the renewal only applies to the piano arrangements sold to the company by Jessica Hill back in 1935 (California Central District Court, Document 187.38). In 1998, Warner/Chappell bought Summy Co. III, and in doing so obtained the rights to “Happy Birthday to You”. It is this company that Good Morning to You Productions took to court.

In 2012, Jennifer Nelson began producing a documentary about the song “Happy Birthday to You”, and filed a request with Warner/Chappell to play the iconic ditty in her film. They agreed, but insisted she pay a 1500$ license fee (California Central District Court, Document 187.39). Though she did end up paying the fee, and entered into the required synchronization agreement license, in 2014 Good Morning to You Productions filed a class action lawsuit against Warner/Chappell. The process called into question both the authorship of the lyrics, as well as the renewal procedure of 1962. The first round at court resulted in judge George H. King declaring Warner/Chappell’s copyright invalid, as the original 1935 copyright applied solely to the musical arrangement which borrows from the 1894 version of “Good Morning to All” – yet he he neglected to declare whether the song is in the public domain (Blistein). Nevertheless, rather than continue the court proceedings, Warner/Chappell and Good Morning to You Productions came to a settlement, wherein the former avoided the possibility of punishment for demanding a fee for use of the song for the last 25 years. Instead, the “lawyers for the plaintiffs will seek a third of the $14 million fee, while the rest will be divided among those who paid the proper fees for “Happy Birthday” in the past and met the other criteria of the proposed class” (Blistein) – mere pennies for the company that has amassed more than 50 million dollars over the course of its ownership of the song. As of earlier this year, the song is now available in the public domain (Blistein)

It is interesting to learn of the controversial history surrounding the song that started out as a simply schoolroom melody and turned into what is thought to be one of the world’s most popular songs. To this day, proper authorship of the lyrics is still not appointed. It is difficult to say whether Warner/Chappell was avoiding the issues of authorship in order to hold on to the rights for as long as possible. Nevertheless, it seems only fair that the big corporation be obliged to pay back those they charged for licensing fees when the origin of their product was so uncertain. Let this telling history be a lesson for what Lethem argues: “we have to remain constantly vigilant to prevent raids by those who would selfishly exploit our common heritage for private gain” (67).

Works Cited

Blistein, Jon. “Warner Music Settles ‘Happy Birthday’ Lawsuit for $14 Million”. Rolling Stone, Feb. 9. 2016.  http://www.rollingstone.com/music/news/warner-music-settles-happy-birthday-lawsuit-for-14-million-20160209. Date Accessed 10 Oct. 2016.

Brauneis, Robert. “Copyright and the World’s Most Popular Song” Journal of the Copyright Society of the U.S.A. 335 (2009) ; GWU Legal Studies Research Paper No. 392. Web. 10 Oct. 2016

California Central District Court. “Rupa Marya v. Warner Chappell Music Inc. Case No. 2:13-cv-04460-GHK-MRW” 17 December. 2014. gov-uscourts-cacd-564772-187-0. Legal document. Date accessed 10 Oct. 2016.

Lessig, Lawrence. The Future of Ideas: The Fate of the Commons in a Connected World. Random House, 2001.

Lethem, Jonathan. “The Ecstasy Of Influence.” Harper’s Magazine 314.1881 (2007): 59-71. Academic Search Complete. Web. 10 Oct. 2016.

Print Friendly