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

Glenn W. Peterson

In our last post, we began a discussion about a copyright battle over one of America’s most well-known songs. Depending on whom you ask, the song “Happy Birthday To You” was placed under registered copyright in 1935 and remains copyrighted to this day. It is now owned by Warner Music Group, which in 1988 acquired the company that owned the copyright.

Since the 1930s, “Happy Birthday” has been a cash cow due to aggressive enforcement of copyright protection. It currently generates an estimated $2 million per year in royalties. The general rule is that private use of the song (an at-home birthday party, for instance) is perfectly fine. But the company does seek royalties on public performances, especially by profit-making enterprises.

A decision is soon expected in a California lawsuit alleging that the song is actually in the public domain. The tune was written (with different lyrics) by Patty Smith Hill and her sister Mildred J. Hill in 1893. The plaintiffs have produced documentation to support their claim that Patty Hill had not asserted copyright and had allowed widespread public use of her song. In 1935, for example, an article in TIME magazine said that Ms. Hill had “long ago resigned herself to the fact that the ditty had become the common property of the nation.”

The plaintiffs concede that Warner Music Group does own the copyright to a specific sheet music arrangement of the song. But, they say, the song itself is in the public domain.

If Warner loses the case, the company may lose more than just a lucrative source of revenue. It could be forced to repay fees it has collected for use of the song (although the exact amount in fees is not yet known).

The musical origins of “Happy Birthday to You” are more than 120 years old, yet issues of copyright are still inspiring controversy to this day. How much more important is it for creators to copyright their own material today, in the age of immediate Internet dissemination?