PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Monday, June 17, 2013

Is "Happy Birthday To You" in the Public Domain?

A new law suit aims to find out:

A filmmaker is suing to make the song "Happy Birthday to You" free for everyone to use.  The plaintiff, Good Morning to You Productions Corp., a New York-based company that is making a documentary about the song, said it belongs in the public domain.  Warner/Chappell Music Inc., the publishing arm of Warner Music Group, owns "Happy Birthday to You," meaning it has exclusive rights over the song's reproduction, distribution and public performances. 

According to Good Morning to You's class-action lawsuit, filed in New York, the company had to pay Warner $1,500 for a license to use the song.  As the 26-page court document notes, the song has a history dating back 120 years.   The tune's origins go back to the 1893 song "Good Morning to All" by sisters Mildred J. Hill and Patty Smith Hill.  The lyrics were: "Good morning to you / Good morning to you / Good morning dear children / Good morning to all."    That song eventually evolved into "Happy Birthday."   The suit aims to return "millions of dollars" in licensing fees from Warner to thousand of people and groups that have paid the company to use the song.

Mike Masnick's blog has a good summary of the issues and an embedded copy of the plaintiff's brief:

The full lawsuit, embedded below, goes through a detailed history of the song and any possible copyright claims around it. It covers the basic history of "Good Morning to You," but also notes that the "happy birthday" lyrics appeared by 1901 at the latest, citing a January 1901 edition of Inland Educator and Indiana School Journal which describes children singing a song called "happy birthday to you." They also point to a 1907 book that uses a similar structure for a song called "good-bye to you" which also notes that you can sing "happy birthday to you" using the same music. In 1911, the full "lyrics" to Happy Birthday to You were published, with a notation that it's "sung to the same tune as 'Good Morning.'" There's much more in the history basically showing that the eventual copyright that Warner/Chappell holds is almost entirely unrelated to the song Happy Birthday to You.

Steve Clowney

http://lawprofessors.typepad.com/property/2013/06/is-the-happy-birthday-song-in-the-public-domain.html

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