"Happy Birthday to You" copyright: Does the most infamous and resented copyright in musical history hold up to scrutiny?

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July 21 2011 10:25 AM

You Say It's Your Birthday

Does the infamous "Happy Birthday to You" copyright hold up to scrutiny?

Illustration by Mark Alan Stamaty. Click image to expand.
Warner Music Group currently owns the copyright to the "Happy Birthday" song

Take pity on Florida musician Bobby Kent: He's a man trying to make a buck in the wrong era. In April, Kent filed a lawsuit over sports teams using that immortal fanfare: "Da-da-da-DA-da-DAA ... Charge!" As old as it sounds, Kent claimed he wrote it in 1978 while serving as the musical director for the San Diego Chargers—and he had a 1980 copyright filing to back it up.

Kent's ploy almost worked: But after his claim got picked up by the media, it suffered a withering assault from every corner of the Internet. NPR listeners recalled hearing the fanfare in 1960s episodes of The Flintstones—a memory quickly confirmed through YouTube clips. Wikipedia entries since 2007 attributed the song to 1940s University of Southern California composer Tommy Walker—a contention bolstered by a link to Sports Illustrated's online archive, which featured Walker's own story of the tune's composition with co-writer Dick Winslow. Rooting through the Los Angeles Times on Google News Archive also reveals account after account from the 1950s of the song, not to mention a 1960 complaint by Walker that people were ripping him off. Finally, from USC itself, and posted on Scribd for all to see, came the final crushing blow: copyrighted 1955 sheet music for"Trojan Warriors, Charge!"

The only cavalry fanfare Bobby Kent should play, it seems, is "Retreat."

The "Charge!" fiasco points to a more subtle development: Just as Google Books can reveal long-hidden plagiarisms, online databases are making it easier to knock shaky copyrights off their pedestals. And no copyright is shakier, or more widely resented, than that for one of the world's most popular songs: "Happy Birthday to You."

Its copyright retains an eternal power to provoke incredulity: Really? I have to pay for that? But Warner Music Group, who acquired it in 1988,  collects upward of $2 million a year from film and TV fees off the song. They nearly collected fees from Girl Scouts for campfire performances before a public outcry scotched the idea. To Warner, the matter is a simple one: "Happy Birthday to You" is a later-copyrighted variation of the melody to the 1893 song "Good Morning to All":

Good morning to you,
Good morning to you,
Good morning dear children
Good morning to all.

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Written by Louisville kindergarten teachers Patty and Mildred Hill, "Good Morning to All" has long been in the public domain. But its "Happy Birthday" overlay was copyrighted by their publisher with its festive lyrics in 1935. The sole melodic alteration was splitting the first note to cover the two syllables of "Happy." Thus magically transformed, it's now set to remain under copyright until 2030. Even without any further growth, that's about $40 million in remaining earning power for what began as a classroom singalong.

The only close scholarly attention this remarkable claim has received remains a 2008 study by George Washington University law professor Robert Brauneis. Buttressed by his growing archive of primary documentation, it reveals unexpected twists in the "Happy Birthday" story—including just how well-deserved the original 1893 "Good Morning to All" copyright was.

"They managed to put together a melody that is significantly different from all known previous melodies," Brauneis explains, noting the "Good Morning" song carefully keeps within a child's abilities: half and quarter notes on a major scale within a single octave. "That, I think, is an achievement worthy of copyright protection."

Their achievement was no accident. The Hill sisters were not a couple of schoolmarms noodling at a piano: They were a disciplined songwriting team, with Mildred composing at the piano, and lyricist Patty testing new songs in her classrooms. Mildred was a pioneering ethnomusicologist, while Patty rose over time to become a highly esteemed professor of education at Columbia University. And it was this elderly professor Hill who unexpectedly resurfaced during a 1934 Broadway production of As Thousands Cheer with a startling lawsuit. The play's use of "Happy Birthday to You" in one scene, she claimed, was worth over $100,000 in unpaid royalties to "Good Morning to All"—a melody which play composer Irving Berlin probably had no idea was under copyright.

Professor Hill's complaint and testimony are a wonder of evasion. "Happy Birthday to You" is left entirely unmentioned in the complaint (pdf); when mentioned in depositions (pdf), it is phrased in this peculiar way:

Q. Did you also use the words "Happy Birthday to You"[?]

A. We certainly did with every birthday celebration in the school.

She never says they wrote them. And with damages hinging on the "Good Morning to All" melody, the plaintiff might not have wanted to drag authorship of "Happy Birthday to You" into the case. As long as she kept the focus on her own copyrighted song, there was the prospect of a tidy windfall for her. But even more money could lay in then claiming "Happy Birthday to You" itself—which may explain why, as one Times reporter noted offhandedly, "Professor [Hill] said last night that the real interested party in the suit was the Clayton Summy Company, publishers of Chicago, not herself and her sister."

Clayton Summy Co. was interested indeed: It soon filed six copyrighted variants on "Happy Birthday to You." All, weirdly, were ascribed to a pair of otherwise obscure Summy employees.

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