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A Birthday Gift for the Public

A Birthday Gift for the Public

I think it is pretty well known that the traditional birthday song “Happy Birthday to You” essentially disappeared from public use, especially in movies and television. This is because the copyright owner, Warner/Chappell, began to enforce the copyright it acquired it 1988, demanding a stiff price for use of the song in broadcast media and elsewhere. It is estimated Warner/Chappell made $2 million annually from licensing the song. One reaction to the copyright enforcement in the entertainment industry was to use alternative and original happy birthday songs.

Another reaction, however, was to challenge the copyright in court. Enforcement of the copyright and the high price exacted for its use motivated people to investigate the history of the song to see whether the copyright could be invalidated. After all, the song was first published in 1893 as “Good Morning to All.” The happy birthday lyrics emerged in the early 20th century with no identifiable author.

A copyright automatically attaches to any work of authorship. The natural copyright, however, is legally anemic because it does not entitle the author to damages for infringement. To be entitled to damages, a copyright must be registered with the Copyright Office in the Library of Congress.

Copyrights in music are complicated. Music, lyrics and recorded performances can be copyrighted separately and in various combinations. Licensing of music is also complicated because of the many ways music can be distributed. To a large extent, Warner/Chappell exploited the complexity to cash in on Happy Birthday to You, believing that the authorship and legal claims to the song were so hopelessly tangled no one would bother to sort it all out.

Litigation, however, forced the disclosure of historical documents that definitively show that the birthday lyrics are in the public domain. A federal court recently ruled that Warner/Chappell’s copyright is limited to a piano arrangement of melody.

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A full discussion of the case is beyond the scope of this post, but I recommend checking out the resources below to get the full flavor of the crazy history of Happy Birthday to You:

http://www.shadesofgraylaw.com/media/00065570.pdf (The court’s opinion)

http://www.onthemedia.org/story/274583-happy-birthday/  (This is probably the definitive history of Happy Birthday)

http://www.soundopinions.org/show/508  (This is a good overview of the litigation. The Happy Birthday segment begins at about 9:35)

http://arstechnica.com/tech-policy/2015/09/judge-warners-2m-happy-birthday-copyright-is-bogus/ (This is about the documents that brought down the copyright)

Additional resources:

http://www.npr.org/2015/09/23/442761620/after-copyright-ruling-let-the-people-sing-happy-birthday

http://www.nytimes.com/2015/09/23/business/media/happy-birthday-copyright-invalidated-by-judge.html?_r=

http://www.nytimes.com/2015/08/05/business/media/an-old-songbook-could-put-happy-birthday-in-the-public-domain.html