Happy Birthday, We'll Sue

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{this is a long artical so be ready to read}

Claim: The song "Happy Birthday to You" is protected by copyright.

Status: True.

Origins: "Happy Birthday to You" is by far the most well-known song in

the English-speaking world, and perhaps the whole world, too. For nearly a

century, this simple ditty has been the traditional piece of music sung to

millions of birthday celebrants every year — everyone from

uncomprehending infants to U.S. presidents; it has been performed in

space; and it has been incorporated into untold millions of music boxes,

watches, musical greeting cards, and other tuneful products. It therefore

surprises many to discover that this ubiquitous song, a six-note melody

composed in the 19th century and accompanied by a six-word set of

repetitive lyrics, is still protected by copyright — and will be for

decades to come.

The "Happy Birthday" story begins with two sisters from Kentucky, Mildred

J. Hill and Patty Smith Hill. Patty Smith Hill, born in 1868, was a

nursery school and kindergarten teacher and an influential educator who

developed the "Patty Hill blocks" used in schools nationwide, served on

the faculty of the Columbia University Teachers College for thirty years,

and helped found the Institute of Child Welfare Research at Columbia in

1924. Patty's older sister, Mildred, born in 1859, started out as a

kindergarten and Sunday-school teacher like her sister, but her career

path took a musical turn, and Mildred became an composer, organist,

concert pianist, and a musical scholar with an speciality in the field of

black person spirituals. One day in 1893, while Mildred was teaching at the

Louisville Experimental Kindergarten School where her sister served as

principal, she came up with the modest melody we now know as "Happy

Birthday"; sister Patty added some simple lyrics and completed the

creation of "Good Morning to All," a simple greeting song for teachers to

use in welcoming students to class each day:

Good morning to you,

Good morning to you,

Good morning, dear children,

Good morning to all.

The Hills' catchy little tune was unleashed upon the world in 1893, when

it was published in the songbook Song Stories for the Kindergarten. (The

composition of "Good Morning to All" is often erroneously reported as

having occurred in 1859 by sources that confuse Mildred Hill's birth date

with the year she created the melody.) After the song proved more popular

as a serenade for students to sing to their teachers (rather than

vice-versa), it evolved into a version with the word "teacher" replacing

"children" and a final line matching the first two, and "Good Morning to

All" became more popularly known as "Good Morning to You." (Ironically, in

light of the copyright battles to come, "Good Morning to All" bore more

than a passing resemblance to the songs "Happy Greetings to All" and "Good

Night to You All," both published in 1858.)

Here the trail becomes murky — nobody really knows who wrote the words to

"Happy Birthday to You" and put them to the Hills' melody, or when it

happened. The "Happy Birthday to You" lyrics first appeared in a songbook

edited by one

Robert H. Coleman in March of 1924, where they were published as a second

stanza to "Good Morning to You"; with the advent of radio and sound films,

"Happy Birthday" was widely popularized as a birthday celebration song,

and its lyrics supplanted the originals. By the mid-1930s, the revamped

ditty had appeared in the Broadway musical The Band Wagon (1931) and had

been used for Western Union's first "singing telegram" (1933), and when

Irving Berlin's musical As Thousands Cheer made yet another uncredited and

uncompensated use of the "Good Morning to All" melody, Jessica Hill, a

third Hill sister who administered the copyright to "Good Morning to All"

on behalf of her sisters, sprang into action and filed suit. By

demonstrating the undeniable similiarities between "Good Morning to All"

and "Happy Birthday to You" in court, Jessica was able to secure the

copyright of "Happy Birthday to You" for her sisters in 1934 (too late,

unfortunately, to benefit Mildred, who had died in 1916).

The Chicago-based music publisher Clayton F. Summy Company, working with

Jessica Hill, published and copyrighted "Happy Birthday" in 1935. Under

the laws in effect at the time, the Hills' copyright would have expired

after one 28-year term and a renewal of similar length, falling into

public domain by 1991. However, the Copyright Act of 1976 extended the

term of copyright protection to 75 years from date of publication, and the

Copyright Term Extension Act of 1998 added another 20 years, so under

current law the copyright protection of "Happy Birthday" will remain

intact until at least 2030.

Does this mean that everyone who warbles "Happy Birthday to You" to family

members at birthday parties is engaging in copyright infringement if they

fail to obtain permission from or pay royalties to the song's publisher?

No. Royalties are due, of course, for commercial uses of the song, such as

playing or singing it for profit, using it in movies, television programs,

and stage shows, or incorporating it into musical products such as watches

and greeting cards; as well, royalties are due for public performance,

defined by copyright law as performances which occur "at a place open to

the public, or at any place where a substantial number of persons outside

of a normal circle of a family and its social acquaintances is gathered."

So, crooning "Happy Birthday to You" to family members and friends at home

is fine, but performing a copyrighted work in a public setting such as a

restaurant or a sports arena technically requires a license from ASCAP or

the Harry Fox Agency (although such infringements are rarely prosecuted).

A common rumor holds that Paul McCartney owns the publishing rights to

"Happy Birthday to You," but that rumor is false. Although Paul McCartney

did buy up many song catalogs after seeing the publishing rights to most

of his Beatles songs slip away in a series of bad business deals (his MPL

Communications is now one of the world's largest privately-owned music

publishing firms and controls the rights to the Buddy Holly catalog, among

others), he does not own (and never has owned) the publishing rights to

"Happy Birthday to You." (In yet another bit of irony, Michael Jackson,

who was introduced to the benefits of song ownership by Paul McCartney

himself, eventually outbid the former Beatle for the publishing rights to

the Lennon-McCartney catalog.)

Who does own the publishing rights to "Happy Birthday to You"? They were

acquired by a New York accountant named John F. Sengstack when he bought

the Clayton F. Summy Company in the 1930s; Sengstack eventually relocated

the company to New Jersey and renamed it Birch Tree Ltd. in the 1970s.

Warner Chappell (a Warner Communications division), the largest music

publisher in the world, purchased Birch Tree Ltd. in late 1998 for a

reported sale price of $25 million; the company then became Summy-Birchard

Music, now a part of the giant AOL Time Warner media conglomerate.

According to David Sengstack, president of Summy-Birchard, "Happy Birthday

to You" brings in about $2 million in royalties annually, with the

proceeds split between Summy-Birchard and the Hill Foundation. (Both Hill

sisters died unmarried and childless, so the Hill Foundation's share of

the royalties have presumably been going to charity or to nephew Archibald

Hill ever since Patty Hill passed away in 1946.)

As writer Bruce Anderson noted in "Beyond Measure," his excellent article

on the "Happy Birthday" phenomenon:

The next time you hear "Happy Birthday" in a movie — and now that you’re

listening, it won’t be long — stay for the credits at the end of the

movie. Think about how Hollywood would love the story of the Hill sisters,

two Southern kindergarten teachers who write a song that they only hope

will be a useful teacher’s aid. Instead, the song is a hit that never goes

away. It is sung hundreds of millions of times each year, a musical

juggernaut that tops the efforts of Tin Pan Alley’s best. Appropriately,

then, film credits are the one place left where Mildred and Patty Hill

still get their due.

Source: snopes