You don’t have to pay a licensing fee to sing “Happy Birthday” at your child’s birthday party. However, playing the song in a television show or film will cost you, unless a new class-action copyright suit is successful in arguing that the song belongs in the public domain.
The argument makes sense considering that the Guinness Book of World Records has called “Happy Birthday” the most recognized song in the English language. However, the copyright analysis is far more complicated, relying on the publication date of the work.
Warner/Chappell Music required the plaintiff, Good Morning to You Productions, to pay a $1,500 licensing fee to use the “Happy Birthday” song in its documentary film about the history of the song. However, according to Good morning to You Productions, the copyright term expired many years ago. The complaint states:
“Irrefutable documentary evidence, some dating back to 1893, shows that the copyright to ‘Happy Birthday to You,’ if there ever was a valid copyright to any part of the song, expired no later than 1921 and that if defendant Warner/Chappell owns any rights to ‘Happy Birthday to You,’ those rights are limited to the extremely narrow right to reproduce and distribute specific piano arrangements for the song published in 1935. Significantly, no court has ever adjudicated the validity or scope of the defendant’s claimed interest in ‘Happy Birthday to You,’ nor in the song’s melody or lyrics, which are themselves independent works.”
As evidence of its claims, the plaintiff alleges, “Even though the lyrics to ‘Happy Birthday to You’ and the song ‘Happy Birthday to You’ had not been fixed in a tangible medium of expression, the public began singing ‘Happy Birthday to You’ no later than the early 1900s…. For example, in the January 1901 edition of ‘Inland Educator’ and ‘Indiana School Journal,’ the article entitled ‘First Grade Opening Exercises’ described children singing the words ‘happy birthday to you,’ but did not print the song’s lyrics or melody.” The complaint further states: “Upon information and belief, the lyrics to ‘Happy Birthday to You’ (without the sheet music for the melody) were first published in 1911 by the Board of Sunday Schools of the Methodist Episcopal Church.”
The complaint goes on to explain the long, and often convoluted, history of the song, as evidence that the copyright does not expire in 2030, as Warner/Chappell Music argues. It concludes by seeking a declaration that “Happy Birthday to You” is in the public domain as well as monetary damages and restitution of all the unlawful licensing fees that defendant Warner/Chappell improperly collected.
As this case highlights, calculating the proper copyright term can be a complicated task, particularly for older works. To determine whether a song has entered into the public domain, it is advisable to consult with an experienced copyright attorney.