Why do filmmakers and restaurants have to pay to use “Happy Birthday”?

A class action lawsuit set to be decided in the coming weeks will determine the fate of “Happy Birthday to You.”

You probably thought that the song was in good shape. You’re wrong, and have been for quite some time. Apparently, somehow, for reasons beyond general comprehension, Warner Music has claimed rights to the song since 1988, and has been charging licensing fees to filmmakers who want to use it — to the tune of about $2 million per year. On its face, this doesn’t make any sense, as the song has been around for so long that everyone just assumes it’s in the public domain. But while that might be what should be the case, it currently isn’t. From Yahoo Music:

The revelation emerged thanks to a 2013 class-action lawsuit filed by filmmaker Jennifer Nelson who was making a documentary about the song. She first paid $1,500 to include it in her film but later sued, asking the company to return any fees collected over the previous four years – an amount that could be in the millions.

During the course of the lawsuit, and thanks in large part to Nelson’s research as part of her documentary, it was revealed that a 1927 publication featuring the song did not include a copyright claim, suggesting that the song was, at that time, in the public domain. So while rights to the song were later claimed and then sold, eventually winding up in the hands of Warner Music, it’s unclear as to whether those rights were Warner Music’s to buy in the first place.

Birthday Cake, via Pixabay

Birthday cake, via Pixabay

The song itself originated as a variant of “Good Morning to All,” which was written by Louisville sisters Patty and Mildred Hill. That song, written in 1893 and published in a book of sheet music called Song Stories for Children, was copyrighted and exhibited at that year’s World Fair in Chicago.

However the sisters never copyrighted the numerous variations of the song, which featured the same tune with different lyrics — even as “Happy Birthday” began to surge in popularity. As Patty Hill explained, “I was never a money grubber.”

But the companies dead-set on retaining rights to the most commonly-sung song in American history are and have always been money grubbers. That’s why they’re still in business. Ever wonder why some restaurants come up with their own awful birthday songs? Because the American Society of Composers, Authors, and Publishers (ASCAP), the country’s leading music licensing organization, collects royalties from every restaurant who wants to use “Happy Birthday.” At one point, they even tried to claim that the Girl Scouts owed them money over the song’s use, very quickly realizing that suing the Girl Scouts would be a bad idea.

But more generally, however, the case could encourage a broader examination of copyright law, which is likely in need of an update for the 21st Century. As Michael Donaldson, a lawyer familiar with the lawsuit against Warner Music, explained over the phone, our current copyright law doesn’t adequately address issues relating to copyright abandonment, especially as they pertain to the Internet age. Online producers of video and audio mashups — which re-edit multiple movies, TV shows and/or songs to create new, original-ish content — are wading into murky legal territory as to whether they are violating existing copyright claims, as companies have called for videos and songs to be taken down that may in fact have fallen under Fair Use protections. Google Books has also come under scrutiny for more or less adopting the copyrights of previous titles that had been “abandoned,” referring to owners losing their copyright claims when they fail to enforce them. In any case, the explosion of content that has come with the advent of the Internet has raised a ton of questions as to who can publish what where, and how much money they owe to whom for the privilege of doing so.

However, Donaldson is confident that the evidence in this particular case is strong enough to put “Happy Birthday” back in the public domain.

As USA Today wrote in 2013, shortly following the lawsuit being filed, one of the reasons it’s taken so long for a legal battle to emerge over the rights to “Happy Birthday” is that the costs for any one producer to take Warner Music to court are greater than the benefits; Jennifer Nelson only paid $1,500 to license the song for her documentary. However, by filing the lawsuit as a class action that includes every filmmaker who has licensed the song over the last four years, there is enough money on the table to make the battle worthwhile. If the court decides in favor of the plaintiffs, all licensing fees collected from “Happy Birthday” over the last four years would need to be returned — a number that could approach eight figures.

What’s more, a ruling in the plaintiff’s favor could open the door for further claims against Warner Music, both for licensing fees collected earlier on, and for members of other industries — such as restaurants — that have had to pay for the right to use a song that the rest of us have taken for granted for years.

Correction: An earlier version of this post stated that Michael Donaldson is representing the filmmakers in their lawsuit in the case against Warner Music. While he is familiar with the case and its background, he is not representing them.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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  • gratuitous

    Indeed. The Holy Rodent Empire has been diligent over the years in maintaining the copyright for its characters and its licensing far beyond any protections ever contemplated by the law. The late and still-lamented Spy Magazine detailed Disney’s heavy-handed work in making sure nobody could appropriate a Disney image for any use, profitable or not.

    It’s long past time the law started catching up with creative output in the 21st century.

  • Joe Bosse

    huh.

  • Hue-Man

    Quebec has appropriated Gilles Vigneault’s “Gens du pays” instead of Happy Birthday; the translated Happy Birthday sounds clunky plus Gens du pays is approaching national anthem status. (Vigneault turns 87 in October and still going strong)

    Here’s a not very good version. http://www.dailymotion.com/video/x3c4a4_ma-chere-sam-c-est-a-ton-tour_news

    Ma chère Sam, c’est à ton tour de te laisser parler d’amour.

  • greenman47

    I believe the copyright laws were changed fairly recently to favor Disney and keep Mickey Mouse out of public domain.

  • Indigo

    It’s as if someone attempted to copyright the Lord’s Prayer or The Heart Sutra or maybe the Hail Mary (the real one, not the sports-metaphor). Stupid! Greedy! Swine!

  • Indigo

    I’ve heard that too but it’s not under copyright in Italian:
    Tanti auguri a ti, tanti auguri a ti, tanti auguri signore, tanti auguri a ti.

  • They’re losing this. Ironically, it’s not the music that is claimed to be under copyright but…get this…THE WORDS! Yes, one phrase repeated over and over again, that is a common expression! Under copyright! Oh, but recently someone found evidence of use of those words with that tune from about 100 years ago meaning it’s been in the public domain for decades now. (As in, since before I was born.) This couldn’t be happening to a bigger bunch of assholes who sued people right and left for a song they had to know they had only a dubious claim on at best. Fuck ’em.

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