“Happy Birthday” is one of the most well-recognized songs in the world, translated in numerous languages and sung at just about every birthday party out there. While it might be sung for an estimated 19 million different birthdays every day, “Happy Birthday” is actually private property. However, a federal lawsuit filed by a group of independent artists is looking to change that. In a filing last week, lawyers in the case found evidence in a nearly 100 year-old songbook that proves the song’s 1935 copyright is no longer valid.
A judge may have a rulin in the case in coming weeks. If the song does become part of the public domain then it would cost the Warner Music Group, who holds the rights, millions of dollars in lost licensing fees. While it’s survived anybody involved in its creation, the “Happy Birthday” song is still owned by a corporation that charges for its use. By this point, the song is almost like a folk song, probably the first song you ever heard as a child that feels like it should have no owner.
The case over this classic tune highlights the centrality of copyright claims to media businesses, including the music industry, where the issue of who owns a song is worth millions. Back in March, a jury verdict in a case involving Robin Thicke’s song “Blurred Lines” rattled the music industry and ruined a one-hit wonder’s one hit after finding that it copied Marvin Gaye’s 1977 “Got to Give It Up”. Part of the dispute over “Happy Birthday” derives from its old publishing history; its familiar melody was first published by a kindergarten teacher in 1893 as “Good Morning to All”. In the 1900s, birthday-themed variations began to appear, so that by the 1930s the song “Happy Birthday to You” had become a phenomenon.
The song was copyrighted in 1935, and in 1988 Warner acquired it after buying the owner, Birchtree Ltd. According to some estimates, the song now generates around $2 million in licensing income every year, mostly through its use in television and film. While it’s widely sung at private gatherings, its copyright status requires some peculiar workarounds in public settings. Restaurants often substitute public-domain songs such as “For He’s a Jolly Good Fellow” to avoid licensing fees, and on live television impromptu performances are often silenced by producers. The song has been a prime target for critics of copyright law for a long time; thanks to an extension made under the Sonny Bono Copyright Term Extension Act of 1998, the song remains under protection until 2030. However, the song’s copyright may not have been properly renewed when its initial term expired in 1963. However, the situation has been complicated by a 1922 songbook containing “Happy Birthday”, which predates the 1935 copyright, that appears through “special permission”. Under the 1998 law, anything published before 1923 is considered to be part of the public domain.