Warner Music collected $2 million annually for use of "Happy Birthday" for commercial purposes.
A court ruling invalidating the copyright on “Happy Birthday” means you can probably now sing what is perhaps the world’s most recognizable and popular song without fear of being sued for royalties. It also means that restaurants may no longer have to make up their own happy-clappy incarnations of the song (that means you, Applebee's!).
This week, U.S. District Judge George H. King ruled that Warner/Chappell Music, the publishing arm of Warner Music Group did not own a valid copyright to the song. The momentous ruling comes in a putative class-action lawsuit filed by several artists against Warner/Chappell over the song in 2013 seeking a return of the millions of dollars in fees the company has collected over the years, Reuters reports.
“Happy Birthday” was born in 1893. Kentucky siblings, Patty Hill, a kindergarten teacher, and Mildred, a piano teacher and composer, are credited with publishing a ditty they created that started life as a schoolroom ditty, “Good Morning to All.” They began to substitute “Happy Birthday” lyrics in the classroom, and after the turn of the century, the song was included with those lyrics in sing-along collections and music books.
Fortune reports that in 1935, a music book publisher, the Clayton F. Summy Co. (later known as Birch Tree) filed for a copyright on the lyrics and music, which was then transferred to Warner in 1988 when the music giant bought Birch Tree.
There is a lot riding on this financially. Warner has earned an estimated $2 million in royalties when the song is used for commercial purposes. Use of the song in the documentary “Hoop Dreams” set filmmaker Steve James back $5,000. It was enforcement of its supposed copyright that helped lead to the current legal imbroglio. Documentary filmmaker Jennifer Nelson was told she would have to pay Warner $1,500 for use of the song in a film she was working on about the song’s origins. She sued, claiming the company’s copyright claim was invalid.
The judge agreed. "Defendants ask us to find that the Hill sisters eventually gave Summy Co. the rights in the lyrics to exploit and protect, but this assertion has no support in the record," King wrote in his 43-page opinion. "The Hill sisters gave Summy Co. the rights to the melody, and the rights to piano arrangements based on the melody, but never any rights to the lyrics.”
But hold on; while the bulk of the headlines for this story trumpet that the song is in the public domain, this may not be the case. A blog on the Techdirt website notes that (the court’s ruling) “did not declare the song to be in the public domain. It just said that Warner/Chappell does not have a valid copyright on it -- which technically means that the song is an orphan work,” a copyright protected work for which rightsholders are “positively indeterminate or uncontactable”
Donald Liebenson writes news and features for Millionaire Corner. He has been published in the Chicago Tribune, The Chicago Sun-Times, The Los Angeles Times, Fiscal Times, Entertainment Weekly, Huffington Post, and other outlets. He has also served as a marketing writer for Chicago-based Questar Entertainment and distributor Baker & Taylor.
A graduate of the University of Southern California, he is married with a college-age son. He also writes extensively about entertainment.