"Only after 1949," Brauneis emails me, "when the copyright in 'Good Morning to All' was expired and both sisters were dead, did someone at the Summy Company come up with the theory that 'Happy Birthday to You' was a derivative work composed by the sisters with a 1935 publication date."
What's more, none of the six copyrighted versions are exactly right: The one that includes both the familiar melody and lyrics also slaps on a second verse that nobody ever uses. When it came time to renew the song's copyright in 1962, Clayton Summy Co. forgot to include this one most crucial version. And that, Brauneis says, is a problem.
"It is almost certainly no longer under copyright," he concludes in his study, "due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application."
So where's that $2 million annual windfall still coming from? Insurers, for one: The insurance necessary on film financing often requires that litigation be avoided by paying all permissions fees. And even without that barrier, it's simply cheaper to pay the bill than it is to fight Warner.
"If I had been billing at law firm rates for my research, the bill would have run into the hundreds of thousands of dollars," Brauneis now notes. "No single user of HBTY pays that much to use it, so there is no commercial incentive to dig through the history."
The V.P. for communications at Warner Music Group did not respond to my questions about Brauneis' work or about whether anyone is currently disputing the copyright. But with each passing year, the vast excavations of digitization toss up a few more provocative fossils from "Happy Birthday"'s prehistory. Brauneis' own searches dug up sheet music from 1912 (pdf) and 1915 (pdf)—unauthorized versions, as they do not credit Hill's 1893 melody.
That got me wondering: how much further could I push back the birthday of "Happy Birthday to You"?
While databases at the British Library, the Library of Congress, and Early American Newspapers turned up few hints, I hit my first real pay dirt at Newspaper Archive: an October 8, 1908 Cedar Rapids Evening Gazette article on the local United Brethren Church birthday party for one David Kurtz, which then prints the entire lyrics to "Happy Birthday to You." (Curiously, it still includes "to you" in the song's third line.)
Google Books and Google News, though, practically burst with "Birthday" clues. The complete lyrics to "Happy Birthday" and instructions to sing it to "Good Morning" are found in The Elementary Worker and His Work (1911)—along with specific attribution of the melody to Patty Hill, and ordering information. That's hardly the work of a pirate—and neither is Tell Me a True Story: Tales of Bible Heroes for Children of To-Day (1909), which includes the similar instructions and an attribution of the latter song to Hill's Song Stories and to Summy as the publisher.
It gets better: A January 3, 1901, issue of the Meriden Weekly Republican of Connecticut notes the performance of "the kindergarten song 'Happy Birthday to You' " for a retired 70-year-old reverend. The January 1900 issue of The Educator-Journal prints unattributed lyrics to "Good Morning to All," immediately followed by a direction to sing "Happy Birthday to You" on "a special occasion." As the article itself must have been submitted before January 1900, that finally puts us into the 19th century. So "Happy Birthday to You" is older—much older—than its copyright hints at.
But does that unequivocally finish off the copyright? Not quite, Brauneis says.
"None of the wonderful things you've found is a silver bullet," he cautions. "But it is additional evidence that the Hill sisters never had any proprietary feelings about the 'Happy Birthday to You' lyrics—the lyrics were being printed all over the place, but the sisters did not specifically claim them as their own any time during their lives."
What would be the silver bullet to the copyright is a specific permission before 1923 by the Hills or the Clayton Summy Co. to reprint the birthday lyrics and their "Good Morning to You" melody together. It might just be a matter of time—plus the right bit of scanning in a database—before that turns up. And if it ever does, Warner Music may find their $40-million birthday cake left out in the rain.