May 25, 2005

Happy Birthday to You

This is NOT legal advice

happy birthday to you

illustration © Kat Caverly, NoEvil Productions, Kat Caverly Enterprises, Inc. 2004

Does anybody really OWN these words?

Did Mildred and Patty Hill know back in 1893 that they were about to create a legend? How could they even guess that in 2005 a major music publishing company, Warner-Chappell would still claim ownership to their song! And who would have foreseen the value of the worldwide rights with the invention of the e-card?

Yes, Warner-Chappell claims to own the rights to the "Good Morning to All" musical compostion, first registered with the US copyright office in 1893, with that registration updated in 1896. Yes, this song became known as the Happy Birthday song, but did the Hill sisters pen these lyrics?

Happy birthday to you
Happy birthday to you
Happy birthday dear (name)
Happy birthday to you

There is no evidence, even Patty Smith Hill's testimony in the infamous 1934 court case, that they wrote those words. In fact there is evidence that even their lyrics to "Good Morning to All" were a derivative of:

Happy Greeting to All
Happy Greeting to All
Happy Greeting Happy Greeting
Happy Greeting to All (©1858)

It is true that the Clayton Summy company registered a piece of sheet music in 1935 under the title "Happy Birthday to You" which used the same music as "Good Morning to You" with the addition of one note, because Happy is two syllables and Good, well is only one.

Clayton Summy is the same music publishing company who published Mildred and Patty's little ditty back in 1893, and again in a larger, illustrated volume in 1896. I claim that no one owns the words "Happy Birthday to You" but Warner-Chappell claims that THEY do own these words, as lyrics, because of this 1935 copyright registration document.

The 1935 registration document does not substantiate this claim. It is a registration of a derivative work (the arrangement) and a work-for-hire by another composer, Preston Ware Orem (the music). The US Office of Copyright has this document and it is a matter of public record.

The Library of Congress does not have the deposit document that went with this registration but James Fuld (author of The Book of World-Famous Songs) does have an early edition of this sheet music, dated 1935, which has No Attribution for the author of the lyrics, and Mildred Hill attributed as the author of the music and this music was arranged by Preston Ware Orem, titled "Happy Birthday to You" and features the Happy Birthday to you lyrics.

The Clayton Summy company was sold and became Summy-Birchard, which was bought by Warner-Chappell. Buying copyrights is a lucrative business in the music industry. In the 18 years I have been in the greeting card business I have never been told that anyone owns those words. Quite to the contrary, it is widely believed that no one owns the simple phrases, Happy Birthday, I love you, Happy Valentines Day, Merry Christmas, Happy Birthday to you; you get the point. Copyright law does not cover "names, short phrases, titles". That is a trademark issue and another story. Strangely, "Happy Birthday" was allegedly trademarked by a Chinese company last year for use on toys. In my opinion this is a dubious trademark at best. And even that does not effect the greeting card business.

birthdays blow greeting cards

It's All About Context and Jursidiction

Yes it is true that the Happy Birthday music is in the public domain in the United States, but it gets tricky with the lyrics. Internet usage is by definition worldwide and intellectual property laws in other countries have been based on author's life + for more years than this song, and its predecessors has been around. The question is how would a foreign jurisdiction measure the term of this copyright.

James Fuld as well as other musicologists believe there are even earlier publications disputing this claim of a current copyright. But the legal position says that every publication without authorization is tainted and possibly nullifies the validity of the publication of the lyrics. Is it ture? Is it possible that the Summy registration in 1935 is the only authorized publication that can be found in the world that combines the music with the lyrics that we all know as the Happy Birthday song?

Posted by photocartoonist at May 25, 2005 3:38 PM

Comments

I have just finished reading the deposition of Patty Hill, dated July 16, 1935, regarding the lawsuit filed in 1934 against the producers of a broadway show, where they sung "Happy Birthday to you..." to the tune of "Good Morning to All". This is fascinating reading since it is the first time I got an insight into what the creator thought of all of this.

There is a beauty to this song, and that beauty is simplicity. It was written for young children and it was a work in progress between 1887-1893. It was tested in the classroom. It was shared verbally amongst other kindergarten teachers. It was sung by children and teachers prior to being published first by the Mildred and Patty Hill, published by the Clayton F. Summy company in 1893.

"Good Morning to All" was but one of many songs for children, created by the Hill sisters and published in "Song stories for the Kindergarten". These songs were popular, according to Patty Hill's deposition, and "...we did not write them for publication. We wrote them for the group of children I was teaching and they were so superior to any other music in the market at the time that the public demanded the publication and they were published and put on exhibit in the World's Fair in Chicago in 1893."

I am eager to get the transcript of the court's decision in this matter. All I know is that since the lyrics "Happy birthday to you" were published at least as early as 1912, and since this dates the copyright in the United States, and since the 1893 copyright was renewed in 1921, the copyright of this song and consequently all the variations of any lyrics, were transferred to public domain in 1949.

Even if one could legally attribute the "Happy Birthday to you..." variation to the Hill sisters, prior publication of the derivative work prevents a 1935 claim of copyright. Even considering copyright laws in other countries, it could be argued that this claim of copyright expired in 1996. The GATT treaty allowed for foreign registration in the United States, but there is some evidence that the consideration is to be given for the country of creation and works created by US authors prior to 1923, are no longer protected.

According to a transcript from the Senate - October 12, 1998, regarding SONNY BONO COPYRIGHT TERM EXTENSION ACT:

"The reason this is of such importance to the United States is that the EU Directive also mandates the application of what is referred to as `the rule of the shorter term.' This rule may also be applied by adherents to the Berne Convention and the Universal Copyright Convention. In short, this rule permits those countries with longer copyright terms to limit protection of foreign works to the shorter term of protection granted in the country of origin. Thus, in those countries that adopt the longer term of life-plus-70, American works will forfeit 20 years of available protection and be protected instead for only the duration of the life-plus-50 term afforded under U.S. law."

So as of October 12, 1998, US authors were afforded life + 50 years of protection in foreign countries, according to the "Rule of Shorter Term". Accordingly, the Hill sister's copyright, went into the public domain in the WORLD in 1996 Patty hill, the last surviving author died in 1946), prior to the passing of the Sonny Bono Copyright Term Extension Act of 1998, which President Clinton signed on October 21, 1998.

Does this Act retroactively bring anything out of the public domain in the United States? No. Therefore, it is my opinion that the Happy Birthday song, including any lyrics, is in the public domain in the World, according to the “Rule of Shorter Term”. The Congress may have acted in time for Mickey Mouse but it was too late for the Happy Birthday song.

Posted by: Kat Caverly at May 26, 2005 2:35 PM

It is easy to see why this issue is such a controversy. Every time I talk to another expert our discussions just lead to more questions, the need for more documentation.

Yesterday I spent hours talking to a forensic musicologist and an EFF attorney. Although it is true that the Happy Birthday to You lyrics were published by other companies prior to 1923, it is also true that those publications were not authorized by the Hill sisters. And the Copyright Act of 1909 upholds the "right of first publication" and I suspect that the court decision in 1935 acknowledged that Patty and Mildred Hill created variations on the lyrics to their tune prior to 1893, but never published them.

Now here is where it gets tricky. What is registered and HOW in the copyright registration titled "Happy Birthday to You", both melody and lyrics, in 1935? I suspect that this is a derivative work, made work-for-hire but I won't know that for sure until I see the registration document and a copy of the published sheet music, dated December 1935. Patty Hill, the only surviving author in 1935 did NOT create the score for the march version of her tune for this 1935 publication, nor did she create any new lyrics. I was told by the EFF attorney, that the rule of law affording her, and her heirs, and her publishing company any and all copyright would be as an author, life + 50 would apply, and therefore this copyright expired in 1996 in the United States.

In the EU, the "rule of shorter term" may apply. In the EU, works created AFTER Jan. 1, 1996 become 70 years p.m.a., but again the work in question was published in 1893 (music) and the first publication of the lyrics was in 1935, both were still the work of the authors, does the 50 years p.m.a. term apply?

Finally I want to track down a copy of this (Book of World Famous Music, page 268):

"a considerable similarity to Happy Greeting to All included in The Anniversary & Sunday School Music Book No. 1 (New York, NY, 1858) p.17" I believe this publication is at the Brooklyn Public Library. I am just curious about the similarities.

Posted by: Kat Caverly at May 27, 2005 1:44 PM

Fascinating journey! My inquiry into the "Rule of Shorter Term" seems to have run into the possibility of the "Rule of Longer Term" in the UK. Also Germany and Switzerland do not appear to adhere to the rule of the shorter term in regards to protecting foreign works. But I need to talk to international copyright experts for these countries.

It is possible, since the United States has been horrible about reciprocating the respect for the longer terms that some other countries have in their copyright laws and since the United States does not recognize moral rights, it is possible that these countries will NOT recognize the longer term for Warner-Chappell.

Is it possible that in the United States this copyright expired in 1996, both for the music and the lyrics, because the rule of author, 50 years p.m.a. applies for Mildred and Patty Hill?

Posted by: Kat Caverly at May 28, 2005 10:14 AM

I have been around the world asking about the term of copyrights, reviewing various laws in various countries and finally I think I have the definitive answer:

According to Circular 15t, US Copyright Office

Renewed Copyrights Automatically Extended to Maximum of 95 Years

Under the statute, copyrights that had already been renewed and were in their second term at any time between December 31, 1976, and December 31, 1977, inclusive, were automatically extended in duration. The total length of these copyrights is now 95 years from the end of the year in which they were originally secured.

So in the United States

2030 for the lyrics
music: copyright expired on Jan. 1, 1950

But in the rest of the world, notably the EU countries, and other Berne signatores, the rule of law is author's life + 70 years. So in Europe, the copyright on both the music and lyrics might expire in 2016, but in Germany and the UK, the longer term of 2030 might be upheld.

Remember that Internet is a worldwide usage, so the Happy Birthday to You musical composition is really, really owned by Warner-Chappell, and the copyright won't expire until 2030... that is unless the term gets another extension.

Posted by: Kat Caverly at May 28, 2005 11:24 PM

It is very important that you consult an IP attorney on this matter if you are reading this for legal advice. As you read through my diary, you will see that I looked at this claim of copyright from many angles, including many What-Ifs. I spent considerable time and money, with many experts, to unravel a very complicated issue.

The bottom line is that Warner-Chappell does claim that they own this song and that they aggressively assert their alleged copyright, wordwide.

Posted by: Kat Caverly at June 15, 2005 2:02 AM

"The Golden Book of Favorite Songs:
A Treasury of the Best Songs of our People" (Lyrics and Music)
Compiled by N. H. Aitch.
Chicago: Hall & McCreary, 1915. (Tenth Edition)

Many of the songs in this collection of "songs of true sentiment, of school days, and early childhood, folk songs and national songs, also our patriotic songs and songs of peace and love" were written by women. Famous examples include "The Battle Hymn of the Republic" by Julia Ward Howe; "America, the Beautiful", by Katherine Lee Bates; "Twinkle, litte star" by Jane Taylor; and "Robin Adair" by Lady Caroline Keppel.

Also worth noting is "Good Morning to You", better known by its alternative lyric, "Happy Birthday to You." The Golden book of favorite songs is notable in part because it contains one of the first documented associations of the music, published by the Hill sisters in 1893, with the birthday lyrics, whose authorship is unknown. This appearance significantly predates the assignment of copyright to the Hill sisters after a lawsuit in 1934. Many people consider this to be significant evidence supporting the argument that "Happy Birthday to You" is in the public domain. The Golden book itself is clearly in the public domain.

Posted by: Mary Mark at September 25, 2005 4:51 PM

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