As of Monday, March 14th, “Happy Birthday” is no longer subject to copyright protection in the U.S. Thanks to a lawsuit brought by documentarian Jennifer Nelson, we are now free to sing “Happy Birthday” in our homes, in restaurants, on TV shows or movies, and anywhere else our hearts might desire.
Many people assumed the song was already in the public domain, but up until now it has been considered the private property of the Warner/Chappell publishing company. The history of “Happy Birthday” and how we ended up here closely follows the strange history of music copyright law in the United States.
Copyright, at its most basic level, is the understanding that the author or creator of a creative work has the right to make and distribute copies of their creation. The term “copy-right” dates back to 1557, and was originally applied to printers rather than authors. It wasn’t until 1710 that the Statute of Anne granted authors rights in their work. American copyright was established in 1790, based largely on the laws in place in England at the time. In those early days, the maximum amount of time a work could be under copyright protection was 28 years from the time of publication.
Music copyright policies must cover two completely different categories of creative works: the music and lyrics that make up a song, and any recordings made of those music and lyrics. Music copyright law has grown in a piecemeal fashion, typically with new laws and guidelines being built once they have something to cover/be applied to rather than lawmakers anticipating new developments. There have only been three significant Copyright Acts in U.S. history — in 1831, 1909, and 1976 — with miscellaneous amendments acting as stopgap measures in between.
While we don’t have an exact date for when “Happy Birthday” was composed, it likely began life as “Good Morning to All” sometime around 1893. It’s attributed to the Hill sisters: Patty Hill was a kindergarten teacher, and Mildred Hill was a pianist and composer. Under the Copyright Acts of both 1831 and 1909, the term of copyright protection begins with the first published version distributed to the public with a proper copyright notice, rather than the date of a song’s creation. Up until recently, it appeared that the first publication of “Happy Birthday” was in 1935, in a book of children’s songs released by the Summy Company. This book was properly registered, but the version of “Happy Birthday” is widely assumed to have been a specific arrangement written for the collection rather than the original publication of the song.
While doing research and discovery for the lawsuit, documentarian Jennifer Nelson’s lawyers managed to uncover a children’s song book published in 1922 that contained “Happy Birthday” with no copyright notice on it at all — which meant that the song, previously published without copyright protection, has never been protected as Warner/Chappell claimed.
The magical year for copyright protection is 1923 — works published prior to 1923 have all exhausted their terms of protection and fallen into the public domain. Works published in or after 1923 have not, because the most recent Copyright Act in 1976 (which actually went into effect in 1978) shifted the term of copyright protection from beginning on the date of publication and continuing for a set number of years, to beginning at the time of creation and extending for 50 (now 70, thanks to a later amendment) years after the death of the author. Works published between 1923 and 1977 that did not fall under the new terms were granted a special term of protection that spanned for the original 28 years, with an automatic renewal for another 67 years.
Additional Reading:
Music Copyright Law, 1st ed. by David J. Moser and Cheryl L. Slay. Pub. March 26, 2013 by Course Technology PTR.
