Could You Be Violating Copyright Law During a Birthday Party?

By: Sara Ahmed

According to the 1998 Guinness Book of World Records, one of the most popular songs of the 20^th century[1] is the one we inevitably have had sung to us every year and have probably sung a good dozen times.

 

It is “Happy Birthday to You.” The song we all inevitably sing at birthday parties.

But could you be infringing someone’s copyright by singing this song?

 

Well, we as individuals are not infringing on anyone’s copyright as long as we sing it amongst a close circle of family and friends. However, many restaurant chains, including Red Lobster and Romano’s Macaroni Grill, have “developed birthday songs of their own in part to avoid having to purchase live music performance licenses from ASCAP,” because it constitutes a public performance;[2] a right given only to a copyright owner. The Warner Music Group Corp. claimed copyright ownership of the “Happy Birthday to You” song; therefore, anyone who wants to use the song must pay them licensing fees to do so.[3]

 

For too long now, no one has challenged the copyright because it is far easier to pay the license fees than get into litigation costs. However, recently, it seems as though someone got really upset and has filed suit. The production company “Good Morning to You” planned on making a documentary where, in one of the scenes, the “Happy Birthday to You” song is sang. The company filed a class action suit in California Federal Court alleging that the song was first copyrighted in 1893 and was “either expired, forfeited or invalid because they didn’t contain ‘original works of authorship,’ except for the piano arrangements” and therefore should be in the public domain.[4]

 

In order to understand what is going on with the suit, it is important to have a look at the history of the “Happy Birthday to You” song. Who really owns it anyway? Who came up with it in the first place?

 

While no one knows exactly who wrote the words of the happy birthday song, the melody comes from a song, ‘Good Morning to All,’ a nursery rhyme created by the two Hill sisters, Mildred Jane Hill, a musical composer, and Patty Smith, a kindergarten teacher.[5] In 1889, the two sisters began working together to compose songs for children.[6] One of these first songs was the song “Good Morning to All.”[7] The ‘Happy Birthday to You’ song with the same tune as Good Morning to All began to appear during 1910.[8] By the mid-1930s, the melody had appeared in a Broadway musical and was used in Berlin’s musical ‘As Thousands Cheer,’ which is when a third sister, Jessica Hill, asserted the copyright to “Good Morning to All” on behalf of her sisters and filed suit against the musical.[9]

 

The Hill sisters had then assigned their interests in the song to Clayton F. Summy Company in six versions of the “”Happy Birthday” and “Happy Birthday to You” registered in 1934 and 1935, in any renewals and extensions thereof, and in any further arrangements that might be made of those works in the future.[10] The Summy Company was then eventually bought out by Warner/Chappell.[11] The production company alleges that the copyright is not owned by Warner because in 1920, Summy Co. was dissolved in accordance with its limited 25-year term of incorporation and did not extend or renew its copyright protection.[12] They also allege that Happy Birthday to You was not fixed in a tangible medium of expression.[13] Therefore, the issues of the case are whether Happy Birthday to You is in the public domain and dedicated to public use and whether Warner/Chappell is the exclusive owner of this song with the right to collect fees.[14]

 

As of now, the case continues and is in the dockets of U.S. District Court for the Central District of California. Warner/Chappel have claimed that letters containing information on the history and status of the Good Morning to You copyright at issue are protected by attorney-client privilege and cannot be released.[15] They also allege that the copyright registration was filed with the U.S. Copyright Office in 1935 and renewed in 1962; and therefore, according to the Copyright Act of 1962, the copyright protection would belong to Warner for a maximum of 95 years. This means that the copyright expiration date would be 2030.[16]

 

If the class action suit is successful, they will not have to reimburse the millions they have collected in licensing fees, only the fees in the past three years due to the three-year statute of limitations. It will also mean that the Happy Birthday to You song will be in the public domain, free for anyone to use. If it is not successful, then persons who want to use the song will have to pay licensing fees to Warner/Chappell until at least 2030.[17]

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