Copyright and Happy Birthday to You

Mildred and Patty Hill

Songwriters Mildred and Patty Hill

Before most people blow out the candles on their birthday cake, they usually sing “Happy Birthday to You.” You know the song well. It’s sung at almost every birthday party. Variations exist in nearly every language. We’ve heard “The Happy Birthday to You” sung by all kinds of pop starts – most famously sung quite saucily by Marilyn Monroe to President John F. Kennedy. It’s really, really popular. So popular that it holds the Guinness World Record for the most performed song ever. And you may think that “Happy birthday to You” is held within the public domain, and free for everyone to sing and enjoy… But, it’s not!

In fact, the song is still held under copyright, one which stems from 1893. As reported in a recent New York Times article about filmmaker Jennifer Nelson, and her documentary “Happy Birthday” (a film about the song), the song is actually property of Warner/Chappell, part of the Warner Music Group. And the Warner Music Group doesn’t play around, they’re quite militant when it comes to getting their royalties. Warner will not allow Nelson to publish the song in her documentary without paying $1,500 in fees and entering into a licensing agreement.

According to copyright as it stands, “Happy Birthday to You” is actually a derivation of the song “Good Morning to All.” “Good Morning to All” was put in writing in the latter half of the 1893 by Mildred J. Hill and Patty Smith Hill, sisters. After more than a century of copyright juggling, the copyrights of the song fell into the hands of Warner Music Group, who holds the rights until 2030 and currently accrues over 2 million dollars each year in royalties!

Those huge royalties are at the core of why you’d be hard-pressed to find the staff of your neighborhood chain restaurant sing “Happy Birthday to You” when you take your Uncle Joe out for his 50th birthday. Instead you’ll we’re serenaded with a birthday-themed reworking of the military marching cadence count, “Sound Off (the Duckworth chant).” Even popular television shows, such as Star Trek have avoided the song by replacing it with “For He’s A Jolly Good Fellow” (albeit in Klingon).

To make matters even more complicated, research conducted by Robert Brauneis of George Washington University, suggests that there’s scant evidence that “Good Morning to All” was actually created by either of the Hill sisters, and that Warner’s claim to “Happy Birthday to You” rights are tenuous to begin with. (More info can be found in Brauneis’ paper, which is linked below)

So what is right here? Arguably, the Hill sisters should have been compensated for their song “Good Morning to All” while they were alive. But once the song was “folk processed,” are their claims really valid? And they’ve been dead for a long time, and the song has become part of culture. Where does the legitimacy of demanding payment for use end? It is sung at just about every birthday party on earth (that’s a potential 6.974 billion “Happy Birthday to Yous”).

If Nelson is allowed to include the song in her documentary, what does that mean for copyright law for other songs … and the airs and estates of today’s songwriters? Should Warner Bros. be able to retain the copyright to the song in perpetuity? And, if so, should we expect a cease and desist letter instead of a birthday card next year?

Sound off below!

— Matt Hengeveld

If you want more information regarding “Happy Birthday to You” and Copyright, check out Copyright and the World’s Most Popular Song,” by Robert Brauneis of George Washington University.

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