It's your party. Sing if you want to.

Source: Hulton Archive/Getty Images

'Happy Birthday' to All, Except for the Lawyers

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
Read More.
a | A

“Happy Birthday” has been freed from its copyright shackles: Rejoice! But don’t rejoice too much. The federal district court in California that invalidated Warner/Chappell Music’s claim to own the lyrics didn’t rely on the logic you might imagine, namely that the words are as much a part of the public domain as, well, the phrase “Happy Birthday.”

The court’s narrow decision, released last week, resulted from an incredibly detailed, legally arcane analysis of whether the alleged owner before Warner actually acquired rights to the lyrics alongside the rights to the music, which have since lapsed. The court seems to have reached the right result, but it hasn’t struck a blow for the freedom of song.

The story behind “Happy Birthday” is interesting. Two sisters, Mildred and Patty Hill, composed the music for the song we know as “Happy Birthday” some time before 1893. They also wrote words: “Good morning to all/Good morning to all/Good morning dear children/Good morning to all.”

The Hill sisters wrote the song for use in a kindergarten; they also wrote several others. In 1935, Patty Hill described the process:

It would be written and I would take it into school the next morning and test it with the little children. If the register was beyond the children we went back home at night and altered it … until we secured a song even the youngest children could learn with perfect ease.

In other words, the song came out of a process of research and development. Its singability is no accident.

The sisters transferred their rights in their songs to the wonderfully named Clayton F. Summy, who in 1893 published them in a book called “Song Stories for the Kindergarten.”

Crucially, the book’s version of the song was “Good Morning to All” -- not “Happy Birthday.” If the “Happy Birthday” lyrics had been in the 1893 book, the copyright to the words would’ve lapsed along with copyright to the music in 1949.

What happened next was more complex. We know with some certainty that the music to “Good Morning to All” soon came to be associated with the “Happy Birthday” song. Hill later explained that in her school, they used the tune with different words for different occasions: “Good-Bye to You,” “Happy Journey to You,” “Happy Christmas to You” and “Happy Birthday to You.”

Very possibly a similar process took place elsewhere in parallel. By 1911, a book called “The Elementary Worker and His Work” gave the “Happy Birthday” lyrics, mentioning that it shared a tune with “Good Morning to All,” which could be found in Summy’s book.

If that indeed is what happened, then the Hill sisters perhaps should have tried to copyright the new words, although they may not have succeeded. But apparently they didn’t try. In 1935, Time magazine, reporting on a lawsuit demanding royalties for use of the music in a Broadway show, said Patty Hill “had no complaint to make on the use of the words because she long ago resigned herself to the fact that her ditty had become the common property of the nation.”

So how could Warner claim copyright over the lyrics? It said the Hill sisters’ heirs assigned the rights in the lyrics to “Happy Birthday” to Summy, who then copyrighted the lyrics in 1935. On this theory, the sisters had a common law right in the unregistered copyright to the words. A 1935 registration date would put the lyrics still under copyright today.

Remarkably, however, there’s no copy of an agreement to that effect between the Hills and Summy. Worse yet, the copyright registration from 1935 is of a piano arrangement for “Happy Birthday.” It may also have included the lyrics -- that’s disputed -- but the court wasn’t willing to rely on this as proof of copyright or of ownership.

The court concluded that there wasn’t sufficient evidence for a reasonable person to think that the Hills had ever transferred copyright in the lyrics to Summy and his company. That seems right -- because it’s far from clear the Hills ever thought they owned the rights to the “Happy Birthday” lyrics in the first place.

What’s most surprising about all this is how little evidence there was for Warner’s copyright claim. There’s a lesson here for how we think of copyright generally. Intellectual property is important, but we shouldn’t assume that everything is owned just because some company says it owns it.

Yes, the tune was written by the Hill sisters, who deserved to get the credit and make money for it so long as their copyright lasted. But the words were a kind of public domain that anyone playing around with the original song might’ve dreamed up.

The theory that the words were copyrighted later and so were still under copyright was some clever lawyer’s trick. It’s a good thing the court saw through it -- even if it took decades to reach the right outcome.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net