Question and Answer #5--The Copyright of "Happy Birthday" and a little on "Miss America"

by John Aquino on 05/17/13

Question: Can I give a public performance of "Happy Birthday?" I heard that it is protected by copyright and that I'll get sued unless I pay a royalty.

Answer: It depends what you mean by a public performance.

If you sing it at your of a friend's home, no, you're not going to get sued for that because it is not a public performance. If you sing it in a restaurant or at a public park, and, of course, on television or at a professional or amateur theatre, Warner Music Group, which claims it owns the copyright for "Happy Birthday to You" and collects over $2 million a year in royalties, says you owe it money. Whether or not they attempt to collect it is its call.

Public performance is defined in the copyright law as performance in public outside of the normal circle of family and friends. The lack of commerical advantage to you as part of the performance would go in favor of it not being a public performance, except that courts have found that restaurants and these other public venues have an indirect commercial advantage from the unauthorized performance of copyrighted material.

Warner claims and asserts the copyright of "Happy Birthday," with the money collected through the venue's ASCAP license, but there are some who dispute the claim.

The problem is the song was created over 100 years ago, a copyright for a book that included a song that has the same music as "Happy Birthday" was registered shortly thereafter, copyright filings for four instrumental versions of "Happy Birthday" and two with the lyrics were registered 40 years later, legal scholars have argued that the copyright for "Happy Birthday" is not in force, but the copyright has been asserted by a very powerful media organization.

While the story of "Happy Birthday" is obscured by the clouds of time, the story of a more recent dispute concerning another well known song, "Here She Is, Miss America" is better known in this electronic news age, up to the point where it was sealed by court order.

"Happy Birthday." The history of the song begins in 1893. Patty Hill taught at the Louisville Experimental Kindergarten School, and her older sister Mildred was a pianist and ethnomusicologist, specializing in African-American music. Together, they wrote a number of songs for Patty's classes, one of which was called "Good Morning to You." It was published in their book "Song Stories for the Sunday School," which was issued by Charles F. Summy. The copyright for the book was registered with the U.S. Copyright Office in 1893 and renewed in 1921.

Early in the 20th century, schools began singing the lyrics "Happy Birthday to You" to "Good Morning to All," making the lyrics fit the music by repeating the first note to cover "happy." No one knows who wrote the new lyrics, and they may just have evolved improvisationally in the process of music classes. "Happy Birthday to You" was published in several song books.

In 1934, As Thousands Cheer, a musical review with a book by Moss Hart and songs by Irving Berlin, opened on Broadway at the Music Box Theatre. It ran for 400 performances during the Great Depression, starred Ethel Waters and Clifton Webb, and featured such Berlin songs as "Easter Parade" and "Heat Wave." It also interpolated what was thought to be a public domain children's song, "Happy Birthday to You." It's ironic that with all of the musical riches from original Berlin songs in the score, there was a lawsuit over the interpolation. A third Hill sister, Jessica, sued for infringement in the U.S. District Court for the Southern District of New York on behalf of Patty and Mildred's estate, Mildred having died in 1916.

The complaint, Hill v. Harris, S.D.N.Y., No. 78-350 (Equity), filed August 14, 1934, claimed infringement of "Good Morning to You," not "Happy Birthday to You." In depositions, Patty and Jessica mentioned "Happy Birthday to You" as if it were the same song as "Good Morning to You," although the sisters never claimed that either Mildred or Parrty wrote the lyrics to the former.  

The Chicago publisher of the sisters' book, Charles F. Summy Corp., quickly published four instrumental versions of the song's melody and two versions of  "Happy Birthday to You" with music and lyrics. The company filed copyrights for all six versions. The copyright registrations, filed four months after the lawsuit, on Dec. 29, 1934, listed as authors not the Hill sisters but "work-for-hire" composers who were Summy employees. When the copyright for "Good Morning to All" expired in 1949, Summy claimed that "Happy Birthday to You" was a derivative work from "Good Morning to All" with a publication date of 1935.

Warner bought the rights to the song in 1990 and collects its millions in royalties mostly from insurance companies, who pay to clear up potential litigation for films and tv shows. The 1934 copyright would have expired in 1991 were it not for various extensions to copyright terms and, most especially, the Copyright Term Extension Act of 1998, which basically added 20 years to the copyright of works created before 1978 and for which there was heavy lobbying in Congress from such copyright holders as the Disney Corporation, Warner, and the estate of Margaret Mitchell, author of Gone with the Wind. The U.S. copyright for "Happy Birthday" is now set to expire in 2030.

In a 2010 article, George Washington University law professor Robert Brauneis claimed in "Copyright and the World's Most Popular Song," GWU Legal Studies Research Paper No. 1111624 (Oct. 14, 2010) that "Happy Birthday to You" was surely no longer protected by copyright. Among the arguments against the work being protected by copyright are: its authorship attributions were defective and rendered the copyright invalid; the songbooks that first published "Happy Birthday to You" did not carry copyright notices, which under the copyright law in effect the time, pushed the song into the public domain; the 1934 copyrights were for arrangements of an already-published song; and there is some question whether the original copyright for the song was ever renewed.

But unless you want to challenge Warner's copyright, which to date no one apparently has, you may have to pay royalties if you want to sing it in a public performance. It is clear that the cost of the lawsuit would be more than the royalties' for a single performance or even several, and so, unless you are in a business in which "Happy Birthday to You" is sung a great deal, challenging the copyright is probably not worth it. (For his part, Brauneis claimed that the deficiencies for the copyright are so glaring that he thinks the challenge would be successfuly effected rather quickly.)

But I remember 20 or so years ago on tv shows starring Steve Allen and The Tonight Show with Johnny Carson people starting to sing "Happy Birthday" to another guest or someone in the audience and Allen and Carson stopping them, saying, "No, if you sing that we have to pay two little old ladies in Kentucky $100." Of course, the two little old ladies were long dead, and the use fee is now paid to a licensing agency.

Incidentally, Patty Hill died in 1946, and Jessica in 1951. Patty and Mildred had never married or had children, and the family established the Hill Foundation, which under arrangement with the copyright owner, now Warner, receives one-third of the royalties. Patty and her sister Mildred were posthumously inducted into the songwriters Hall of Fame in 1996.

As for the lawsuit against the creators of As Thousands Cheer, who included Berlin, Hart and Sam Harris, the producer, it was dismissed in 1938 for lack of prosecution. By that time, the song's copyright had been registered, Summy was collecting royalties, and litigating the case to a conclusion as to the copyright's validity may not have seemed like a good idea. The lawsuit did, however, provide Summy and the Hills the opportunity to publicly assert their ownership against unauthorized use in a big way.

If you want to delve into the legal history of the song, Brauneis has generaously posted a wealth of legal documents at docs.law.gwu/facweb/rbrauneis/happybirthday.htm.

"Here She Is: Miss America." The song was written in 1954 by Bernie Wayne, who also wrote "Blue Velvet." It was used by the Miss America Pageant in 1955 in a promotional film, and sung first by emcee Bert Parks at the end of the pageant when the winner is crowned. Parks' singing of the song became iconic, and he did it for 24 years. He was fired from the pagent in 1979, sang a parody of the song to a komodo dragon in the 1990 film The Freshman starring Marlon Brando and Matthew Broderick, and was brought on to sing the song in the 1991 pageant, the year before he died.

Wayne's widow, Phyllis Wayne, sued the pageant in 2012 in a copyright dispute, Wayne v. The Miss America Organization, C.D. Cal., No. 2:12-cv-03449, filed 4/20/12), claiming the organization's license to use the song had expired in 2010 and yet the organization continued to use the song in connection with the pageant in 2011 and 2012 and on CDs. This was not a dispute over copyright ownership or authorship but of licensing fees. The song was replaced by instrumental music for the 2013 pageant in January.

The dispute was confidentially settled in December 2012, and the lawsuit dismissed. But on May 7, 2013 the pageant announced that the song would not be used in the 2014 pageant and was no longer to be part of it. No reason was given, and the assumption is that dropping the song from the pageant was either part of the settlement agreement or it is in reaction to the lawsuit and the settlement. The relationship between Phyllis Wayne and the pageant has apparently not been a friendly one. The attorneys are saying the terms of the settlement are confidential, so we probably won't know for sure what happened.

In some ways, Phyllis Wayne is a lot like Jessica Hill, the keeper of the copyrights, the kepper of the flame.

 Copyright 2013 by John T. Aquino