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.
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.
"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.