Happy Birthday To Me (And Us All)!
By Stephen Swalsky, PactUS Expert
Every production professional can tell the story of when they wanted to include “Happy Birthday to You” in a production only to be told that they needed to lose it due to unexpected and unbudgeted licensing costs. Often this led to disbelief. How could the world’s most popular song, one assumed to be as old and as commonplace as “Amazing Grace" or “The Itsy Bitsy Spider”, etc. not be in the public domain and free for use?
Good news for all those celebrants and production houses. Now, you are indeed free to include the music and/or lyrics of this hoary old chestnut in your project as you see fit. A recent lawsuit against defendants, Warner/Chappell Music Inc. and Summy-Birchard Inc., and subsequent settlement has effectively settled that the defendants did NOT have a valid copyright to the lyrics to the song "Happy Birthday to You".
Until recently, Warner/Chappell Music unfailingly clamped down and demanded royalties from anyone who wanted to sing or play “Happy Birthday to You” WITH the lyrics in any type of commercial enterprise from large screen to small screen to dinner theatre (the music itself as a stand-alone has long been part of the public domain). Even restaurants were not immune which is why your local family-friendly chain restaurant had their own unique version of the song to avoid the reach of Warner/Chappell and subsequent toll. There were about two million reasons per year for Warner/Chappell to aggressively maintain that they did have a valid copyright in the song.
An Arduous Copyright Battle
Such a simple little song has an incredibly complex backstory. The saga starts over 120 years ago when the Hill Sisters of Kentucky, Patty and Mildred, composed a basic eight-note ditty entitled “Good Morning to All” for the students of Patty’s kindergarten class. The song quickly gained in popularity, likely due to its simplicity and catchy melody, and found its way in to several different singalong songbooks and publications. Flash forward to 1935 when a publisher of one of the songbooks, Clayton F. Summy Co., filed for copyright of both the music and the lyrics of “Happy Birthday to You”. The rights and holdings of Clayton F. Summy Co. went through several transfers until it was finally acquired by Warner/Chappell in 1988 through their purchase of Birchtree Ltd. for $25 million. The Happy Birthday copyright alone made this a bargain, as it is likely that Warner/Chappell brought in excess of $50 million in licensing of this song during the life of its ownership. Lest one think that Warner is a complete “black hat” in this situation, they have been donating 1/3 of the Happy Birthday licensing profits to a charity of the Hill family, the Association for Childhood Education International, which provides funding for children’s education, likely to the tune of $16 million since 1988.
Kudos to filmmaker Jennifer Nelson and her Good Morning to You Productions for taking on what was often assumed to be a very difficult and cost-prohibitive fight. Nelson, who was creating a documentary about the genesis of the song, was appalled that Warner/Chappell was going to charge her $1,500 for the use of the lyrics. She brought suit. At the core of her legal action, the Federal court had to determine whether Warner/Chappell was correct in its assertion that the 1935 copyright was still valid and that it owned the rights to the "Happy Birthday" lyrics. Federal court judge George King disagreed with Warner/Chapel’s position and ruled that they never held a valid copyright because Clayton F. Summy Co., who had filed for copyright back in 1935 itself never had the copyright to transfer.
It should be noted that Judge King said that The Summy Co., the publisher that originally filed for copyright on “Happy Birthday”, only had a claim to the specific arrangement of music used for the song — not the combination of lyrics and music. It should also be noted that the copyright in the arrangement of the music itself, separate from the lyrics, entered the public domain a long time ago. All the court ruled was that Warner/Chappell didn’t hold a valid claim to the song — it didn’t explicitly rule that no one has one. Sure, some unknown third party could magically materialize to claim the song lyrics as theirs, but realistically, this is not likely to occur. The prevailing wisdom is that the song is, for all intents and purposes, in the public domain or, at worst, an “orphan work,” one that is still covered by copyright, but whose owner is unknown (and will probably remain that way).
With the passing of over 120 years and multiple lawsuits and intense judicial scrutiny along the way since the song’s purported creation, it is pretty safe to assume that it is likely nil that someone will be able to bring a legitimate claim. Regardless, it’s pretty astounding that it has taken almost 70 years after the death of the last Hill sister in 1946 for the ownership chain to be ultimately determined. It shall also be interesting to see if a flood of lawsuits materialize against Warner/Chappell from those who previously paid for the use of Happy Birthday and now seek recompense.
Ultimately, what this means for you as the producer and production company is that you have the absolute creative freedom that you need to include the tune and the words of Happy Birthday in your production without requiring your clearance department to expend time, energy and crucial budget funds that could be spent elsewhere in securing a quote and negotiating a license from Warner-Chappell (and risking a possible rejection and pricey last-minute edit of your project). If you want “Happy Birthday to You” in your production, go for it! Just don’t expect to be able to use “Birthday” by The Beatles without ponying up a substantial license fee!