We have all practically grown up with the song “Happy birthday to You” sang in our birthdays by our family and friends. It may sound shocking to many, that a song that we held so dear was subject to a big money making tool for Warner/Chappell Music, a division of Warner Music Group. As oblivious as most people may have been about the copyright issues of the 'Happy Birthday' song, over the last couple of weeks this has excitingly become a matter of public interest. Question remains, how did it all start?
In the year 2013, a documentary film maker, Jennifer Nelson had to pay a royalty of USD 1500 for using a clip of the song in her documentary which was meant to be a compilation about the top 65 popular happy songs. Refusing to pay royalty for a content which has been in public domain for a substantial period of time, she filed a law suit against Warner Music in the same year.
What helped Nelson in pursuit of this law suit was a well documented paper by Robert Brauneis of George Washington University's Law School from 2010. The convincing evidence presented in Brauneis’ paper put the actual ownership of the melody and lyrics of the song in dispute; backed with more than 200 documents from six historical archives from all over America. The paper also insinuated that, even if the rightful owners had ownership over the songs, the ownership wasn’t renewed properly after the 60s.
History of the song
Originally titled as 'Good Morning To All', the 'Happy Birthday' song was first composed in 1893 by sisters Mildred J Hill and Patty Hill who were pioneers in the field of early-childhood development. The original song was developed to be sung by school teachers to the students, everyday. Original lyrics of the song wished 'good morning' instead of “happy birthday”, which became a very popular song in and around Kentucky kindergartens and primary schools in the late 19th century. Much later, in the 1911, the word 'birthday' slowly replaced 'good morning' and thus the 'Happy Birthday' song was born.
Even in the 20th century, probably foresseing the potential of song, the Hill sisters strictly instructed their trainee teachers to never write it down, at least until they figured out a way to copyright their work. Unfortunately, in 1916, before the first copyrighted version of the song was published, Mildred passed away. Later in 1924, the song (Happy Birthday) was first published in any printed format, along with the melody next to it.
An image of the first publication of the both the songs along with musical notes. Image source: Internet
Soon after the publishing, the song started appearing in the contemporary sound films and on radio airwaves, without any royalty involved. In 1931 the 'Happy Birthday' song appeared in the Broadway musical The Band Wagon. Couple of years later, Western Union used it as a stunt in their first ever "singing telegram" followed by yet another appearance on Broadway. It was only then the third Hill sister, Jessica, stood up to secure the copyright of Happy Birthday in 1934, thanks to its similarities to “Good Morning To All”.
In the following year, Clayton F. Summy Company published the copyrighted version of the Happy Birthday song in print. The Hills were in agreement with Summy that gave rights to the sisters over the song if it was used for monetary purpose up till 1991, which was later extended until 2030. Unfortunately, in 1946, when Patty Hill died, under the prevailing copyright law in the United States, 'Good Morning To All' music retained a minimum protection of 70 years after Patty's death, which is until 2016.
However, in 1988, following a series of acquisitions, Warner Music gained ownership and benefited from the song a reported royalty worth USD 2 million per year. Although Warner Music held to the ownership, in technical argument, Nelson’s evidence suggests that the rights to the music expired either 70 or 95 years ago, while the words to 'Happy Birthday to You' neither belonged to the remarkable Hill sisters nor the Warner Music therefore could retain the copyright to the song.
According to Nelson’s lawyers, the originally copyrighted song was 'Good morning to All' instead of the hyped ‘Happy Birthday’ song which unfortunately never underwent any legal formalities. The 'smoking gun' in the plaintiff’s argument was a 1927 version of the "Happy Birthday" lyrics, predating Warner/Chappell's 1935 copyright by eight years. That 1927 songbook, along with other versions located through the plaintiffs' investigations, "conclusively prove that any copyright that may have existed for the song itself... expired decades ago."
"This indicated either of the two things: (1) the publication of the song in the book put the lyrics into the public domain in the very year and, (2) it started a clock ticking on a 28-year copyright term that would have required Summy to renew the copyright in 1950, more than a decade before the company actually did file for a renewal. According to the lawyers, this is a solid proof that the song has been in the public domain for decades and Warner Music has been monetizing a wrongful copyright."
Recently on September 15, 2015, after a two year long dispute over the copyright claims, the US federal judge ruled out that the Warner Music no longer holds the copyright over ‘Happy Birthday’ song. Prior to that, the company is inclined to pay “USD 5 million in licensing fees”, reports The Telegraph. Unhappy with the verdict, Warner Music filed an opposing motion, although the plaintiff were "prepared to argue that Warner knowingly hid the songbook", with necessary evidences!
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