Ruling soon expected in copyright suit over birthday song: Part I

Glenn W. Peterson

Our recent posts have focused on copyright law, and we’ll be continuing that discussion this week. In some cases, copyrighted material is straightforward, and alleged copyright infringement is therefore easy to determine. In other cases, however, it is not immediately clear that infringement has occurred.

Did you know that the song “Happy Birthday To You” was copyrighted and may remain under copyright protection to this day? The song, which is a tradition at birthday celebrations across the United States, has long been considered protected intellectual property. That’s why, on some television shows, sound-alikes and alternate birthday-themed songs are sometimes used.

Most Americans naturally assume that the simple (and even annoying) song is a folk song in the public domain – and they’re not necessarily wrong. A decision is soon expected in a lawsuit that was filed about two years ago. To understand the pending decision, it helps to know some history.

The melody for “Happy Birthday” was written by two sisters in 1893, one of whom was a school teacher. The original title was “Good Morning to All.” Over time, the birthday lyrics started being sung over the original melody. In 1935, “Happy Birthday” was registered for copyright, but not by the two women who are originally credited with writing the tune. The copyright was acquired by Warner Music Group in 1988.

Since it was first registered in 1935, the copyright owners have aggressively enforced copyright protection against any and all who perform the song publicly. Composer Irving Berlin was forced to pay royalties in the 1930s because he used the song in a musical. There was even a public outcry when it was suggested (sometime after 1988) that the Girl Scouts may need to pay fees for use of the song. In response, Warner Music Group called the story a “misunderstanding.”

About two years ago, a documentary film production company sued Warner Music Group, alleging that the original 1935 copyright was invalid because the original authors had already allowed the song to drift into the public domain by that time. The evidence recently presented by plaintiffs is compelling, to say the least.

Please check back as we continue this discussion in our next post.