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November 24, 2015 | From the blogUncategorized

Happy Birthday to You – Now It’s a Gift

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Domenic Romano

Founder & Managing Partner

Have you ever wondered why some restaurants come up with their own songs to celebrate a customer’s birthday?  Although it is one of the most popular songs and we sing it to friends and family often, “Happy Birthday to You” is rarely sung in restaurants or in the media.

One of the biggest reasons is that Warner/Chappell Music Inc. (“Warner”), a division of Warner Music Group, has claimed the copyright to the song and has been collecting up to $2 million in yearly fees for the use of the song since 1988!  However, a recent lawsuit has placed “Happy Birthday to You” into the public domain, really blowing out Warner’s candles.  If Warner loses the copyright, it may have to pay back the $2 million that they have received from use of the song.

Origins of “Happy Birthday to You”

“Happy Birthday to You” was written by two Kentucky sisters, Mildred and Patty Hill in 1893, but they called their version “Good Morning to All.” The original lyrics were:

“Good morning to you / Good morning to you / Good morning, dear children / Good morning to all.”

The sisters then composed a simple melody to match the words that could easily be sung by young children.  The song was published in a book called “Song Stories for the Kindergarten,” and the copyright was assigned to their publisher, Clayton F. Summy Company (“Summy Co.”), in exchange for a percentage of the song’s sales.

WMG Lawsuit

In 2013, two filmmakers filed a lawsuit in a federal court in Los Angeles against Warner when Warner asked for $1,500 for the right to use the song in the film.  In the lawsuit, the two filmmakers argued that the song was in the public domain.  Any song in the public domain may be used by anyone in any way, without having to pay fees.  Warner argued that it acquired Birch Tree Group, the successor to Summy Co, and therefore, they are the rightful owner’s to the song’s copyright.

On September 22, 2015, Judge George H. King, ruled that Warner did not hold the long-claimed copyright to the song. Judge King determined that the sisters only granted the rights to the piano arrangements, not the rights to the lyrics, to Summy Co.  Because Summy Co. had never acquired a copyright to the lyrics, neither did Warner.

The plaintiffs now plan to ask the court to order Warner to return all the fees that have been collected since 1988.

Current State of “Happy Birthday to You”

Although this may be a celebratory moment, the entertainment and restaurant industries should be very careful before rushing to use the song. Here’s why:

  1. The song still remains under copyright in other countries, so users outside of the United States may still need to pay a fee.
  2. Someone else may claim ownership to the copyright to the song. Since the court’s decision, another group has already come forward saying that they are the owners of the copyright in the song.
  3. Warner announced that it plans to put up a fight and seek an appeal of Judge King’s decision.

But, for now, you may enjoy singing “Happy Birthday to You” without having to pay a fee.

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