The debate over whether or not the song ‘Happy Birthday’ is still in copyright could be coming to a US courtroom thanks to a new lawsuit launched by Good Morning To You Productions Corp. Given that in 2008 is was claimed Warner Music’s publishing company made in excess of $2 million a year from the song, one would assume it would be keen to prove the popular ditty was definitely still a copyrighted work.
The lawsuit is being pursued by filmmakers who have been making a documentary about the history of the song. Although the film company paid the $1500 sync fee Warner/Chappell charged for the inclusion of the song in the documentary, the producers say that their research has unearthed evidence to prove, once and for all, that the song is now public domain, in the US at least, and no royalties should have to be paid to use it. It’s not the first time it’s been argued ‘Happy Birthday’ is public domain, though it would be interesting if the evidence amassed by Good Morning To You Productions made it into a courtroom.
The copyright status of ‘Happy Birthday’ is complicated, and differs in the US and Europe. By most accounts, the piece was created by sisters Patty Smith and Mildred Hill in the late nineteenth century as a classroom song, albeit initially with the lyrics ‘Good Morning To You’, though it’s very possible they adapted existing earlier versions. The music and lyrics, including the subsequent ‘Happy Birthday To You’ variation, then appeared in various books, originating from both school and church communities in America, in the early years of the 20th century.
But the US copyright that covers the song stems from the publication of the lyrics in a songbook in 1924 and a piano arrangement of the melody in 1935. These publications, and the accompanying copyright registrations, both follow a significant change in US copyright law that occurred in 1923, which provides for a 95 year copyright term from date of publication. It is on that basis that Warner/Chappell, which acquired the publisher of ‘Happy Birthday’ in 1990, claims the song is still in copyright, with the melody due to stay that way until 2030.
But, argue lawyers representing Good Morning To You Productions Corp, there is plenty of evidence that the song – both the music and the ‘Happy Birthday’ lyrics – was published and registered before 1923, which would mean it was protected by the pre-1923 copyright system, which would in turn mean the copyright expired long ago. What Warner/Chappell owns the copyright in, said lawyers will argue, is the specific adaptation of the melody published in 1935, but not the general tune it was based on.
It remains to be seen how the arguments of each side stand up if and when the case gets to court. And, if Good Morning To You Productions won, what that would mean for Warner/Chappell, which would have been taking royalties for a public domain work for decades.
In Europe, the copyright in the song – assuming it originated with the Hill sisters – would expire 70 years after the death of Patty Hill, who died 30 years after her sister, meaning the copyright will expire at the end of 2016.