Smoking gun found in the long saga of the Happy Birthday song?
The story of “Happy Birthday to You” is a fascinating history that spans the annals of Copyright Law. It begins in 1894 when a song with the same melody but different lyrics titled “Good Morning to All” was published by Clayton F. Summy in a collection entitled “Song Stories for the Kindergarten.” That sisters Mildred and Patty Hill were the composer and writer respectively of this version is undisputed, as works created before the 1909 Copyright Act acquired copyright by registration with the Federal Government prior to publication. The dispute centers on a later publication of the sheet music for “Good Morning to All” with additional lyrics for “Happy Birthday to You” in 1935, with copyright notice “© 1935 Clayton F. Summy Company.”
The issue of copyright to this song hinges on two aspects which the current copyright claimants, Warner/Chappell, assert are true: That the Hill sisters were the authors of the Happy Birthday lyrics, and that the copyright to the 1935 publication was properly obtained. While there is significant evidence that neither of these things are true, if true, and the copyright was properly extended for both its terms, then “Happy Birthday to You” will be under copyright until 2030 — 122 years after the melody was published in 1894. And it will continue to earn approximately $2 million in licensing fees per year.
Somewhat surprisingly, while the copyrightablity of a song as popular as “Happy Birthday to You” has long been an anecdote for the ridiculousness of continuing to retroactively extended copyright terms, no one has stepped up before now, in court, to assert that Warner/Chappell don’t actually own the copyright. This is even more surprising because there is actually a lot of evidence, much of it put together by Robert Brauneis, that the song should have entered the public domain in the first few decades of the 20th century.
The current court case, Good Morning to You Productions v. Warner/Chappell Music, threatens to throw more than a proverbial wrench into this $2 million a year licensing bonanza. In a trove of documents that Warner/Chappell was supposed to have released more than a year ago, the plaintiffs found a 1927 publication of the song “Happy Birthday to You” in “The Everyday Song Book”. The exciting part of this new evidence is that with a little additional searching, the plaintiffs unearthed an earlier edition of this version – a 1922 copy – with the words clearly written below the title, Special permission through courtesy of The Clayton F Summy Co. This version, published without a copyright notice (a requirement of the 1909 Act), AND 13 years prior to the 1935 version that Warner/Chappell claim is the first published version, is THE “smoking gun” which has long been sought by advocates of this song belonging to the public domain. If the judge finds in favor of the plaintiffs, Good Morning to You Productions, that’s “pretty damning conclusive evidence that “Happy Birthday” is in the public domain and the Clayton Summy company knew it. Even worse, this shows that Warner/Chappel has long had in its possession evidence that the song was at least published in 1927 contrary to the company’s own claims in court and elsewhere that the song was first published in 1935.” This would undoubtably open the door for additional lawsuits against Warner/Chappell by anyone who has paid licensing fees for the use of “Happy Birthday to You,” a song that will hopefully soon hold its proper place in the public domain.
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From the plaintiffs filing 7/27/2015: www.scribd.com/doc/272751583/Birthday-Evidence