Is “Happy Birthday to You” Song Really Copyrighted or in Public Domain?

Public birthday celebrations can be painfully embarrassing, especially when a restaurant crew suddenly breaks out in their own original, quirky version of birthday tune while presenting a free dessert at your table? Why don’t they just sing the traditional, well-worn “Happy Birthday to You?” It’s often attributed to their desire to avoid paying royalties to sing the traditional song.

Controversy has surrounded the song, “Happy Birthday to You,” for many years and with good reason. People are often shocked to find out that it is, in fact, a copyrighted composition that requires licensing and royalty payments in order to use it. This does not apply to singing the song in a family setting, or “non-public” scenario, but it does impact public performances of the song as well as the rights to reproduce the composition.

Or is it really copyrighted? That question could be answered soon when U.S. District Judge George King makes a ruling pertaining to a lawsuit filed earlier this year by Good Morning Productions against Warner/Chappell, owner of the popular song.

Judge King stated earlier in May that he wants to hear more about whether the 19th century schoolteacher who has been credited with writing “Happy Birthday to You,” the English language’s most popular song, had abandoned the copyright to the lyrics. The judge directed the plaintiffs and defendants to brief him on the issue of abandonment, which means the plaintiffs’ lawyers will have to go back through the evidence in the record and figure out how the author, Patty Smith Hill, made a move to ditch any authority on the lyrics more than a century ago,  according to an article by Eriq Gardner in The Hollywood Reporter.

The plaintiffs are arguing that the melody has been in the public domain for more than 65 years, and that nobody knows who wrote the familiar “Happy Birthday” lyrics, but since the public was singing those lyrics in the early 1900s, before the copyrights were registered, the song had become a public work. Warner/Chappell denies that the song is in the public domain. Songs in the public domain essentially have no owner. You can do anything you want with them without having to obtain permission, pay royalties or credit the original author. You can make any changes you want to it, including changing lyrics, adding a verse or chorus, or changing the melody. A great example of modifying a public domain song is Chris Tomlin’s contemporary adaptation of “Amazing Grace (My Chains Are Gone.”

According to an article in Snopes:

“Happy Birthday to You” has been dubbed “the world’s most popular song.” For a century now, this simple ditty has been the traditional piece of music sung to millions of birthday celebrants every year, from uncomprehending infants to U.S. presidents; it has been performed in space; and it has been incorporated into untold millions of music boxes, watches, musical greeting cards, and other tuneful products. It therefore surprises many to discover that this ubiquitous song, a six-note melody composed in the 19th century and accompanied by a six-word set of repetitive lyrics, is still protected by copyright and will be for years to come.

Good Morning To You Productions Corp., a New York film company, says it is making a documentary about the song. They are seeking to have the court declare the song to be in the public domain, and to block the publisher from claiming it owns the copyright to the song and charging licensing fees for its use.

The original melody for the song was created by sisters Patty Hill and Mildred J. Hill in 1893, but the song title was “Good Morning to All,” and the song served as classroom greeting song for kindergartners (both sisters were kindergarten teachers).

The history behind the song is pretty fascinating, and the relevant legal arguments are set forth exhaustively in this excellent 2010 article by Robert Brauneis, a law professor at George Washington University.

If Warner/Chappell lose the lawsuit, it could prove to be one of most costly copyright litigation rulings in history. It is estimated that the publisher earns $2 million per year in royalties and licensing fees related to “Happy Birthday.” The tune has generated an estimated $50-100 million in royalties over its lifetime. The music company paid $25 million in 1998 to acquire Birchtree Ltd., a small company whose musical holdings included the birthday song, according to an article by Benjamin Weiser in the New York Times.

On the bright side, if the filmmaker wins the lawsuit, you may no longer be subjected to some rather bizarre restaurant musical renditions celebrating your special day of birth.

CCS’s Founder and CVO, Susan Fontaine Godwin is an educator and long-time member of the Christian arts community with 30 years of experience in the Christian media industry, church copyright administration and copyright management. Susan is an author and speaker and frequently writes for several Christian magazines and online publications. She serves as an adjunct professor at the University of Mobile.

About Christian Copyright Solutions: CCS’s quest is to help churches and ministries “do music right.”  CCS is an expert on church music copyrights and our primary focus is providing licensing and clear educational resources to churches, as well as representation, administration and advocacy for copyright owners. Follow us on Twitter, Facebook and Pinterest. The information contained herein is for informational purposes only, and is not legal advice or a substitute for legal counsel.