How many times have you illegally sung “Happy Birthday to You”? - Fordham Intellectual Property, Media & Entertainment Law Journal
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How many times have you illegally sung “Happy Birthday to You”?

How many times have you illegally sung “Happy Birthday to You”?

“Happy Birthday to You, Happy Birthday to You, Happy Birthday Dear_____, Happy Birthday to You.”

According to the Guinness Book of World Records, “Happy Birthday to You” is the most recognized and most popular song in the English language. Many scholars even argue that “Happy Birthday to You” is the most popular song in the world, having been translated into at least eighteen different languages. Until recently, it was technically illegal to sing “Happy Birthday to You” in public settings with groups of people, including birthday parties, office parties, and restaurant celebrations. Ever notice in movies and television-shows the original rendition of “Happy Birthday to You” is never played, it’s usually some makeshift version; this is for the mere reason to evade licensing costs.

The song dates back to the late 1800’s when Patty Hill, a teacher in Louisville, Kentucky, used to sing “Good Morning to All” to her students to the tune of what we now know as “Happy Birthday to You”. Patty Hill and her sister worked together to come up with the melody and lyrics for “Good Morning to All”. In 2014, documentary filmmaker Jennifer Nelson began to work on a film about the origins of the song and was told by Warner she would have to pay $1,500 to use the song in her movie. Warner claimed the copyright was transferred to its company in 1988, which made as much as $2 million a year by charging people who sang it. Jennifer Nelson sued Warner and federal court judge George King ruled in her favor.

Section 102(a)(2) of the Copyright Act protects “musical works, including any accompany words”.1 Warner claimed to have copyright in the lyrics of the song. However, the song has at least two copyrightable elements as a musical work, the music and the lyrics, and “each element is protected against infringement independently.”2 The parties disagreed about the status of the lyrics of the song, not the melody, which has undeniably been in the public domain for decades. Warner argued Patty Hill and her sister authored the lyrics to the song, transferred them to Summy Co., which published and registered them for a federal copyright. Nelson argued that there was no proof who wrote the lyrics because the common law copyrights were lost before they were even published and the rights were therefore never transferred to Summy Co. The Hill sisters may have given Summy Co. the rights to the melody, but never any rights to the lyrics. The judge stated that Warner never held a valid copyright because the Summy Company, the publisher that filed for copyright in 1935, never had one. Summy had a claim to the specific arrangement of music used for the song, not the combination of lyrics and music.

To me it seems like someone would have come forward years ago if they truly had the copyright rights to “Happy Birthday to You”. It doesn’t make sense for someone to have those rights and sit back watching Warner obtain money for it and others sing it freely. And if someone has sat back and watched, why would they come forward now? For now, there is no one else alleging they own the rights to the highly acclaimed “Happy Birthday to You” song. But it may not be long before someone else tries claiming copyright ownership over the highly acclaimed “Happy Birthday to You”.

  1. See 17 U.S.C.A. § 102.

  2. Marya v. Warner/Chappell Music, Inc., No. CV-13-4460, 2015 WL 5568497 (C.D. Cal. 2015).

Cydney Korek

Cydney Korek is a second year student at Fordham University School of Law and a staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal.