For some time now, the poster child for the excesses of U.S. copyright law has been a little ditty known as "Happy Birthday to You," which Guinness calls the most popular song in the English language. It is also a revenue-generating juggernaut, producing more than $2-million a year in fees for Warner Music and the offspring of Mildred and Patty Hill, the sisters who composed it in 1893. Chain restaurants have come up with their own birthday ditties so that they wouldn't have to pay performance royalties for the song, and the ASCAP licensing authority told the Girl Scouts of America that they would have to pay licensing fees because their campers sang the song (among others).
According to new research published by Robert Brauneis of the George Washington University law school, however, Happy Birthday to You likely isn't covered by copyright at all any more, and hasn't been for decades. The reason people keep paying Warner for the rights to use the song in movies and other performances, the professor argues, is that no one has bothered to take it to court and prove that Warner and the Hills don't own the rights. Although there have been several court cases involving the song, they have all either applied only to the music itself or they have been inconclusive with regard to who created it.
The professor's exhaustive 69-page research study is available online, along with dozens of supporting documents. According to his research, while the Hill sisters may have had a legal claim to the original version of the song -- a kindergarten ditty called Good Morning to You -- there is no evidence that they composed the version that uses birthday lyrics, and therefore the claim filed in 1935 by a music publisher (later bought by Warner) is invalid. And since the company that filed that claim didn't have the proper rights, the extension that was later filed (which keeps the copyright in force until 2030) is also invalid.
As Brauneis notes, however, until someone takes the case to court, Warner Music and the descendants of the Hill family are likely to continue raking in millions of dollars from a song that virtually every one has sung (or had sung to them) at least once a year.
