Intellectual Property Attorney

Filmmaker Tries to Blow Out Candles on Warner’s Copyright Registration in “Happy Birthday to You”

Whether it’s our family gathered around the table sharing birthday cake, or Marylyn Monroe crooning to the President, “Happy Birthday to You” is engrained in our collective American experience. Generations of Americans have sung or heard this song—year after year—as we blew out candles and laughed with friends. Yet for something so much a part of everyday life, “Happy Birthday to You” comes with an unusual caveat: the song is the copyrighted property of Warner Music Group.

This means that any commercial performance of the song—whether Monroe’s tribute to the President or a “performance” by the waiter at a restaurant as he brings out a piece of cake—is subject to paying copyright royalties.

The long and litigious history of “Happy Birthday to You” stretches back nearly a century. In 1893, sisters Mildred and Patty Hill published a song entitled “Good Morning to All” with the same melody as “Happy Birthday to You”. The unclear history of what happened next is
currently the subject of a purported class action lawsuit filed in the United States District Court for the Southern District of New York. It is unclear, for example, whether the Hill sisters actually wrote the lyrics to “Happy Birthday to You”, whether someone else did, or whether the lyrics simply came about through the unguided result of various additions and subtractions by any number of singers. In fact, some anecdotes even attribute the “Happy Birthday to You”
lyrics to kindergarteners.

What is clear is that
two years after a lawsuit in 1933, the Clayton F. Summy Company—the Hill sisters’ publisher—filed for copyright registration on the song. Since that time, the copyright registration obtained by the Summy Company in “Happy Birthday to You” have become extremely lucrative. At current estimates, Warner Music Group, which acquired the copyright registration in 1988, pulls in an
estimated $2 Million per year from royalties—and vigorously defends its rights in court.
According to one research paper, “Happy Birthday to You” is, by far, the most popular song of the twentieth century, and is estimated to have been publicly performed hundreds of millions of time.

Two years ago, a filmmaker named Jennifer Nelson—from the not-so-subtly-named Good Morning to You Productions, Corp.—filed suit against Warner after she was billed $1,500.00 to include a clip of “Happy Birthday to You” in a documentary she is creating about the song.

During discovery for the case, Warner Music turned over a copy of a 1927 edition of a songbook containing the lyrics to “Happy Birthday to You”. That led one of the attorneys to what has been called a “smoking gun”: a version of the songbook from 1922 which included the “Happy Birthday to You” lyrics without any copyright notice. Generally, works published during that period without a copyright notice are automatically part of the public domain. The Court is currently considering motions related to this discovery, and is expected to rule in the coming days. Whether the Court will blow out the candles on Warner remains to be seen. When the ruling comes, Grimes LLC will be here to offer trusted analysis. Until then, it might be best to hold off on singing Happy Birthday—soon you might be able to have your birthday cake and eat it too.

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