Happy Birthday, Welcome to the Public Domain | Vol. 2 / No. 47.4

Happy Birthday to You, and You, and You...! | Photo: Will Clayton, CC BY 2.0
Happy Birthday to You, and You, and You…! | Photo: Will Clayton, CC BY 2.0

For Throwback Thursday, I’m throwing it all the way back to when you had to pay someone just to sing “Happy Birthday to You” on tv, which is as far back as… *checks watch* …last week. Enjoy!


In case you didn’t know, if you wanted to sing “Happy Birthday to You” in a commercial setting — on tv, radio, a YouTube video, at an annoying chain restaurant — you have, until this week, had to pay a licensing fee to Warner/Chappell Music. Not because they owned the copyright to the music. That had been settled a while back when it was determined that the tune originally came from a song called “Good Morning to You,” whose copyright expired a long time ago. Rather, what they have claimed is that they own the copyright to singing the words “happy birthday to you” three times and “happy birthday dear [insert name here]” once to the tune of a song called “Good Morning to You.”

Except, a judge just ruled that they don’t.

In the ruling, which you can find here, U.S. District Judge George H. King explains (at very great length) how the case works and how he arrived at his ruling. Here’s how it played out.

It starts with a copyright registration. Copyright registrations are *finnicky* little things. While they aren’t necessary — technically you have copyright from the moment you create something — they do change the burden of proof in case of a lawsuit. If you’ve got a valid one, then the person contesting your copyright has to prove you don’t have it. But the judge in this case ruled that the copyright registration Warner/Chappell had wasn’t for the lyrics. The registration is from 1935 and is an “Application for Copyright for Republished Musical Composition with New Copyright Matter,” meaning it’s what’s called in legal circles a “derivative work.” But what part was derived, and what new? Warner/Chappell were claiming the new part was the lyrics. But what it actually says is this:

“The title of the musical composition was listed as “Happy Birthday to You.” […] The author of the new copyright material was “Preston Ware Orem, employed for hire by Clayton F. Summy Co.” In one blank space, the application prompted the claimant to “[s]tate exactly on what new matter copyright is claimed…” [… and] the response read: “Arrangement as easy piano solo, with text.”

Even if you believe Warner/Chappell that the text was a new addition, something not exactly proven by that particular description, the copyright is in the name of Preston Ware Orem, who everyone agrees didn’t write the lyrics. Let me say this again: both sides of this dispute agree that Orem didn’t write the lyrics. So even if it does refer to the lyrics, it’s not valid because it’s in the wrong name.

This shifts the burden of proof to Warner/Chappell, who’ve been claiming this whole time that three sisters, Mildred, Patty, and Jessica Hill, “authored the lyrics […] held onto the common law rights for several decades, and then transferred them to Summy Co., which published and registered them for a federal copyright in 1935.” And in short, they can’t, especially when that 1935 registration is in the name of Preston Ware Orem, not Patty Hill.

The case gets weaker when you realize that the lyrics were published in 1911, 1912, 1915, 1922, 1924, and 1928, none of those times copyrighted in the name of any of the Hill sisters, but sometimes in the names of others, like Alice Jacobs and Ermina Chester Lincoln (1911), or Robert Henry Coleman (1924).

Now in a 1935 lawsuit, in which Patty Hill is actually suing Summy Co. for overstepping the bounds of their licensing agreement for it and other songs, she affirms in no uncertain terms that she and her sisters wrote the lyrics to “Happy Birthday to You” in 1893.

Q. Did you also use the words “Happy Birthday to You”? […] Did you write the words for this particular tune of “Good Morning to All,” miss Hill?

A. I did.

Unfortunately for Warner/Chappell, the judge ruled that this in itself does not prove she wrote them, seeing as how one might equally presume that in the forty-two years since then (with no attempt to register it, and with all the subsequent publications thereof) that someone else had written them, and that her claim i, in the judge’s words, “post hoc attempt to take credit for the words that had long since become more famous and popular than the ones she wrote for the classic melody.”

To top it off, even if she did write them, it doesn’t really matter. After an in-depth look at the Hill v. Summy Co. trial (you’ll really have to read the judgement itself) the judge comes to the conclusion that while Patty Hill did transfer the rights to the music, there is no indication in any record presented that she ever sold, gave away, or otherwise conferred the rights to the lyrics to “Happy Birthday to You” to the Clayton F. Summy Co. In his words, “Defendants’ speculation that the pleadings in the Hill-Summy lawsuit somehow show that the Second Agreement involved a transfer of rights in the lyrics is implausible and unreasonable. Defendants’ suggestion that the Third Agreement effected such a transfer is circular and fares no better. As far as the record is concerned, even if the Hill sisters still held common law rights by the time of the Second or Third Agreement, they did not give those rights to Summy Co.

And since Warner/Chappell’s sole claim to the song lies in getting it from Summy Co., and since the music is already in the public domain, congratulations one and all: “Happy Birthday to You” is now free.

I don’t know how long it’ll last — god knows they’ve been making so much money off the damn thing for so long they’ll try to overturn the ruling if they can think of a way — but in the meantime it’s a great (small) step in the copyfighting revolution. Check out the LA Times for more.


Richard Ford Burley is a doctoral candidate in English at Boston College, where he’s writing about remix culture and the processes that generate texts in the Middle Ages and on the internet. In his spare time he writes about science, skepticism, and feminism (and copyfighting) here at This Week In Tomorrow.