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.
The Toast has somehow tapped into my cerebral cortex today.
/goes back to Adwords “copyright attorneys” “copyright expiration” “copyright lawyer”
As long as there is a Disney corporation with bottomless pockets, post-1923 copyright in the United States will be essentially everlasting.
Yep. Our only hope is they start relaxing what the restrictions on copyright are – what constitutes a copy of a work has been a nightmare ever since computers became a thing.
I figure the term of copyrights in the US might as well be defined as, “life of the author, plus however many years it has been since Walt Disney died, plus one.” I wish congress would just declare Walt to be immortal for copyright purposes, so at least other stuff from that time period could become public domain.
Awesome piece Genevieve! I would be interested to know your opinion on cases where someone is suing another for copying a musical element from one of their songs, thinking of the Marvin Gaye / Blurred Lines lawsuit.
It’s a complex matter because there are only so many ways to arrange notes, people can unconsciously copy melodies they’ve heard before (the “My Sweet Lord” case is the legal standard for this), how many notes in a melody do you get before infringing is impossible to quantify (the “Jaws” noise is a good reference here, two notes and everyone knows it), and sometimes it can be very hard to see the line between referencing a particular kind of sound and ripping it off wholesale. Honestly, I feel like it’s something that should only ever be decided by a panel of musicologists but it’s pretty damn hard to get 12 of them together to form a jury of one’s peers. Most infringement cases settle out of court because it’s easier for everyone.
In the “Blurred Lines” case specifically, I don’t think the music rose to the level of infringement and virtually every musician and composer I know feels the same way. But because the case went to open court, it’s hard to give laypeople on the jury the background to understand what that standard is and it seems like “but they sound alike” was enough to convince them. I wouldn’t be surprised to see it overturned on appeal.
This has absolutely nothing to do with Robin Thicke who is, obviously, horrible regardless of the facts of the case.
Oh I of course agree about Thicke, that case just came to mind (probably because of my extreme dislike of him).
I didn’t think the Gaye family should win, but when you listen to the songs I can of course see how a jury would think so. Just curious about what someone with more legal knowledge might think, and thank you for the long response!. As someone who personally has written a good amount of songs on guitar, so many chord progressions or strum patterns are repeated constantly. And sometimes I listen back to a vocal melody and realize it references another song a might like. It just seems so natural to overlap with other pieces of music. Certainly a fascinating area of copyright.
Oh as another recent example American Girl / Stay With Me or American Girl / Last Nite, where Tom Petty only sought a case against one…
this is so interesting.
Honestly, I feel like it’s something that should only ever be decided by a panel of musicologists but it’s pretty damn hard to get 12 of them together to form a jury of one’s peers.
but it should be a panel of musicologists! standard-issue juries are difficult enough as it is to communicate with about legal issues; introduce technicalities in music (or anything else, really) and bam, at least 10/12 are out the window.
in a tangential thought, and these all wayyyyy pre-date copyright laws, I can’t help but be reminded of the hymnals in the lutheran church when I was growing up: there are so many songs set to the same melody that often once the music started I would be all, ok let’s go “XYZ name!” and have a moment of disorientation before I realized that actually it was something completely different.
At the very least, I think that anyone sitting on a jury in a music infringement case should be asked if they can read music and discarded if they can’t. It’s basically like hearing a case in a language you don’t speak.
for sure. I studied classical piano for 9 years, but even still: I wouldn’t be confident in myself enough to feel like I could really serve appropriately on a jury like this.
i don’t know that they were asked if they could read music. there wasn’t a gaye recording entered into evidence – just the version of record submitted for registration, which was a less than full written version of the song. Interestingly, even though the song was written after ’72 and the recording was protected by copyright, there couldn’t be a suit related to the recording because the rights to both are owned by the same record label.
There are some questions in this case that the jury instructions were unclear on the idea/expression distinction (plus, lots of folks hate robin thicke). One of the big pieces of evidence that’s pointed to are Thicke’s comments about his inspiration from the original, but the instructions didn’t clarify that ideas can’t be copyrighted. An upbeat song with a groove and falsetto isn’t something that can be copyrighted – only a specific expression of it. The average person doesn’t understand this critical distinction in US copyright law and it’s a problem when juries get to weigh in on rulings.
Lots of legal folks think that, outside of that really specific technicality, this is really case of hard facts making bad law — it’s incredibly difficult for jury’s to understand without music expertise and, again, Thicke was an incredibly unsympathetic plaintiff while the Gaye family seemed imminently sympathetic to people.
There is also a really messed up idea in the US that we have moral and natural rights – ie, Marvin Gaye worked really hard creating his art, no one should get to malign that because of his hard work. That’s not how copyright works in the US at. all. I’d go farther than what’s cited in the article – copyright exists to promote science and the useful arts. It’s limited because we want inventors, artsists, and participants in the culture to build on the work of others. You get a limited monopoly to benefit from your work as an incentive to put it out for the public. Of course, limited is essentially forever for all of us now.
Thanks, Obama!
It’s extra useful when you want to sing a harmony line that you know exists for a hymntune but isn’t printed for that specific hymn.
Copyright in recordings is even more complicated because it involves two different types of copyright. When a performing artist writes and records a song, they get copyright for both the song as an composition and the specific recording. Which is why, basically, you have to pay to cover songs (using the composition, even if you put your own spin on it) and also to sample from them (using the recording). But to use just a rhythm or a short lick or a chord progression that also occurs in something else does not necessarily mean that you are copying it from that song and therefore owe anything to that creator.
To make matters more complicated, when you cover a song, you cannot be prevented from doing so as long as you pay the compulsory licensing fee (https://en.wikipedia.org/wiki/Compulsory_license#United_States), whereas the owner of the copyright to the recording can prevent you from using the sample if they want to. And even with a cover the copyright owner *can* prevent you from publicly performing or broadcasting the cover, even if they can’t prevent you from recording it and selling physical copies.
One of my classmates in my Masters program was a percussionist and he had a big thing about better regulations on sampling, because a lot of the samples involved just the rhythm line and a lot of those drummers were studio musicians payed a flat fee who never saw any of the money collected for those samples, even if they came up with the line.
Oh, that’s super interesting! That would be really great, those studio musicians do good work.
Well this isn’t my area, but you can imagine how the Blurred Lines verdict creates an incentive for someone to file a lawsuit every time there’s a hit song. There’s some subsequent lawsuit against Tame Impala that suggests this problem might actually be arising.
*standing ovation*
Great piece!
Thank you! I enjoyed writing it.
I have nothing to contribute except that I misread that as “standing ovulation” and it took me a minute.
Ahhhhhhhh law content on the Toast, I am so happy.
IP is such an underrated topic! It is so interesting to compare with America, too, because it is so closely tied up with publishing and media law and defamation, all of which are reaaaaaaally different here in the UK.
(Testing out new login, disregard me)
My little brother (who is, uh, no longer little, obv) was one of the original lawyers in the Happy Birthday lawsuit and did a lot of work on it. It always sounded fascinating. (Yup, I’m so proud of him!)
Apparently one of the reasons the copyright wasn’t challenged until now is that Warner never charged huge fees for using it, meaning that it was much cheaper to just pay up instead of spending much more money to challenge it in court.
I heard servers singing regular Happy Birthday in a restaurant recently, and rejoiced in this lawsuit, for lo, I had been so sick of the Annoying Substitute Birthday Song that was so common in Applebee’s and the like.
Well this isn't my area, but you can imagine how the Blurred Lines verdict creates an incentive for someone to file a lawsuit every time there's a hit song. There's some subsequent lawsuit against Tame Impala that suggests this problem might actually be arising.
Genevieve? Are you stepping out on Pajiba? Making me do a double-take on which website I’m on? It’s good to see your byline stretching far and wide – keep up the good work!
And why is 1923 the cutoff point? Because in 1923, Walt Disney made his first successful animated short “Alice’s Wonderland.”
Every amendment to the copyright law since then has made the term of a copyright longer and longer and longer. The Constitutional mandate of a “limited term” for copyright protection actually means “as long as media corporations desire.” I expect that any new copyright law will similarly lengthen the term of copyrights such that Mickey Mouse never enters public domain. (Notwithstanding the fact that Disney has itself made a lot of money out of public domain works, including those of Robert Louis Stevenson and Jules Verne).
thanks for sharing this article loved it. happy to read this law content.