It came as a shock to me when I first read--far too many years ago--that the song ‘Happy Birthday’ was under copyright & a company could charge you money if you dared to sing it. Well, no longer! The BBC reports today that a court has ruled that it is out of copyright.
The copyright history of ‘Happy Birthday’ is pretty damn tawdry.
Warner/Chappell Music claim the current rights & have actively pursued royalties for every public performance (“singing the words when ‘a substantial number’ of people present are not family or friends” is a ‘public performance’). In 2008 that was worth $2m for the year (£1,306,920 GBP at current rates) and, at an estimated £50 million earnings since copyright establishment, ‘Happy Birthday’ is reckoned to be the highest earning single song in history.
People have been singing the words of the ‘Happy Birthday’ song for a very long time. The melody can be traced back to the sisters Patty and Mildred J. Hill in 1893 as they published it on that date as “Good Morning to All” as part of their songbook Song Stories for the Kindergarten. The song itself dates back to at least the middle of the same century, when Patty introduced it at a kindergarten class that she was running in Kentucky. There are suggestions that Patty copied the tune from other sources, and a great many other songs of the period had similar words. Well, whatever. Because it was published so long ago, that melody is now within the public domain.
Patty and Mildred’s song proved very popular with their students. Those students began to sing it at birthday parties, but changing the lyrics from ‘Good Morning’ to ‘Happy Birthday’. Then the old tune began to be published with the new lyrics (1912, 1918, 1924 + 1933, various publishers, none of whom are connected with the Hill Sisters).
Now, no American is going to allow a popular song to go un-copyrighted and, in 1935, the Summy Company (another publisher of ‘Happy Birthday’) copyrighted the work & claimed Preston Ware Orem and Mrs. R.R. Forman as the composers (who?!) as Work for Hire (in other words, the Summy Company own the copyright & not the original composers). They also established Birch Tree Group Limited to enforce that copyright. Warner/Chappell Music bought the copyright from Birch Tree Group Limited in 1988 for $25 million.
I told you that the copyright history was tawdry, but it’s worse than you think. Copyright lapsed in the UK a long, long time ago, yet the USA Copyright Extension Act would have extended the USA copyright to 2030. Further, Warner/Chappell Music were hiding evidence that showed that it was already in the public domain.
Finally, someone took Warner/Chappell Music to court in 2013. In fact, two at the same time, at the Southern District of New York & the Central District of California. On 22 September US federal judge George King ruled that the song lyrics can be freely sung.
Naturally, Warner/Chappell Music are considering an appeal.
--------- Alex Kemp