Happy Birthday to Whom?: New Litigation Challenges Copyright Ownership in “the World’s Most Popular Song”

Happy Birthday to Whom?: New Litigation Challenges Copyright Ownership in “the World’s Most Popular Song”

Most members of the public might be surprised to hear that “Happy Birthday to You” is apparently still subject to copyright protection in the United States, let alone that it is the subject of litigation aptly described by the New York Times as a “lawsuit for the ages.”


This summer, two proceedings were commenced in New York and California against Warner/Chappell Music, which had acquired the rights to “Happy Birthday to You” in 1988 and collects over a million dollars annually in royalties for the use of the song. Just last month, U.S. District Judge George H. King let the case proceed in California, dealing first with the issue of whether Warner/Chappell owns copyright in the song.


No doubt the plaintiffs have read the lengthy study published by Robert Brauneis, professor of law at George Washington University Law School, contesting copyright in “Happy Birthday to You” through an extensive analysis of evidence spanning nearly 120 years. There is no contention that the melody of the song was authored and first published in 1894 by two sisters, Mildred and Patty Hill, both teachers who put together a collection called “Song Stories for the Kindergarten”. The melody of what is now known as “Happy Birthday to You” was published in this collection under the title and lyrics “Good Morning to You.” What is less clear is who first combined the melody of “Good Morning to You” with the “Happy Birthday” lyrics, authoring the song as we now know it. This combination of the melody and new lyrics constitutes a new derivative work, itself subject to U.S. copyright.


Brauneis’s study challenges the subsistence of copyright in “Happy Birthday to You” on two main grounds. First, the evidence to support the notion that Mildred and Patty Hill were the ones to combine their melody with the “Happy Birthday” lyrics is not sufficient to find that they are the authors of the derivative work, “Happy Birthday to You.” If they are not the authors of this new work, then the 1935 copyright registration on which Warner/Chappell bases its claim to ownership is unauthorized and invalid. Second, even if the song was properly registered in 1935, copyright would have expired 28 years later, unless it were validly renewed. Brauneis contends that the renewal filed in 1962 only covered a particular arrangement of the song, and not the music and lyrics themselves.


Copyright currently offers some of the broadest protection for intellectual property, much longer than the term for patents, and for a much broader range of works and activities than trade-mark law covers. It certainly seems absurd, as Lawrence Lessig noted, that you would need permission or a licence from Warner/Chappell “if you posted a video of your kid’s first birthday on the Web.” This absurdity was cited by Justice Breyer of the U.S. Supreme Court in his dissenting opinion in Eldred v. Ashcroft , the case that ruled the retroactive twenty-year extension of copyright protection in the United States to be constitutional.


What significance has this saga for Canadian copyright law? If Mildred and Patty Hill are the joint authors of “Happy Birthday to You,” copyright protection for the song – on the assumption that the combination of tune and lyrics would, as in the US, have a separate Canadian copyright – would have expired in 1996, 50 years after the death of Patty Hill, the work’s last surviving author. Even if copyright subsisted, a YouTube video of little Larry’s first birthday would likely be permitted under the new exception for User Generated Content enacted in 2012 by the Copyright Modernization Act. In the Copyright Pentalogy that year, the Supreme Court of Canada also made it clear that users have rights, and these rights must be broadly interpreted. Much of the recent discussion of user rights has focused on fair dealing and the other exceptions to infringement in the Copyright Act. “Happy Birthday to You” serves as a reminder that the term of copyright and its expiry are also integral to the maintenance of the Théberge balance in promoting the dissemination of creative work while generating incentives for creators. When copyright protection extends so far beyond the life of the author, who really stands to benefit from these incentives? Perhaps the author’s descendants, but more commonly, a corporate owner like Warner/Chappell, one of the largest music publishers in the world.


Nevertheless, if the convoluted history of this simple song can be unwound and Warner/Chappell’s claim to copyright in “Happy Birthday to You” is defeated, the movement to restrict the term of copyright will lose one of its best, and certainly its most popular, poster children.


Quinn Harris is a JD Candidate at Osgoode Hall Law School and is enrolled in Osgoode’s Intellectual Property Law Intensive Program.  As part of the program requirements, students were asked to write a blog on a topic of their choice.