Happy Birthday? Music, Copyright Law and Bombed Out!
Above Photo: What d’you mean it’s friggin’ copyrighted!? (Adapted artwork by John Harbourne)
Readers of Bombed Out! will know the book is much more than a band or Punk memoir, but a trip through some strange times in the late 1970s-early 1980s in Liverpool and the UK.
Among the unusual themes is how experiences of being in Punk and New Wave bands and the music business helped generate an interest in Law, and where it eventually led me. Which is probably why nowadays I enjoy interesting stories about music and legal issues, even if they have nothing to do with Punk and New Wave music.
I recently read a fascinating article about the song ‘Happy Birthday’ – and I don’t mean the 1981 Altered Images song, which isn’t relevant to this article at all (although, come to think of it, I’ll add a link to that below). No, this related to the world-famous birthday celebration song, officially known as ‘Happy Birthday To You’ which is currently mired in legal disputes about copyright.
The BBC website article explained that the music to ‘Happy Birthday To You’ was written in the late 19th Century by two sisters , Mildred and Patty Hill, who called their version ‘Good Morning To All’. That song later evolved into the version popular today and was copyrighted by the sisters’ publisher. The publisher and the rights to the song were eventually purchased by Warner/Chappell for $25m (£16m) in the 1980s.
But now a group of artists is challenging Warner/Chappell’s rights to the copyright. They claim they have found proof that the song belongs in the public domain, making it available for anyone to use, for any purpose, at no cost.
They say a 1922 songbook containing the song predates the song’s 1935 copyright, and a ruling in the case could put the song in the public domain years before Warner/Chappell claims its copyright expires in the US, in 2030.
For a song raking in an estimated $2m per year in royalties, that represents the loss of a significant amount of money.
For now, people who want to use ‘Happy Birthday To You’ in a film, television episode, advertisement, or other public performance must pay Warner/Chappell a fee, which is where the above royalty figure comes from.
One of the plaintiffs is documentary filmmaker who set out to make a film about the song and ended up suing Warner/Chappell after learning she would have to cough up $1,500 to feature the song in her film.
Suing is just the most recent reaction to the song’s licensing fee. In the past, advertisers, writers, and even chain restaurants have devised ways to skirt the copyright.
They have included just the beginning or the end of the song, playing ‘For He’s A Jolly Good Fellow’ instead, or crafting a completely different birthday song.
According to the Internet Movie Database, ‘Happy Birthday To You’ has been played in nearly 150 films, but hundreds more contain birthday scenes that skip the song altogether.
A New York Advertising Executive said it is seldom used in advertising either:
“Once we found out there was a copyright involved, the idea would go another way because it just seemed like for advertisements it was cost prohibitive to use the song.”
When childrens’ parties were being depicted, advertising teams would create their own music or pick a song that was already in the public domain. The song is probably heard in films and on television more because the licensing fee is cheaper, the exec said, since the aim is not to help a brand sell its product.
Another place you don’t hear the song is during birthday celebrations at chain restaurants. Some chains have written their own birthday songs to avoid paying licensing fees.
With the emergence of the sound chip card in the 1990s, greeting card companies also came up with creative alternatives to using the song.
David Ellis Dickerson, who worked at Hallmark as a greeting card writer and editor, said the profit margin on cards was already so small that paying the licensing fee to use the song in every single card was out of the question. Instead they came up with their own versions, but which still sounded like Happy Birthday.
If the plaintiffs win their copyright lawsuit, people will then be able to sing ‘Happy Birthday To You’ in public (should they wish) although what happens to all the people who paid a fee to use it when it wasn’t technically capable of being copyrighted, is another question.
UPDATE: Warner lost the case!
A federal judge in Los Angeles ruled on Tuesday that belting out the tune in public should be free of charge, dismissing a copyright claim by Warner Music.
Warner Chappell Music does “not own a valid copyright in the ‘Happy Birthday’ lyrics,” Judge George King determined. The decision brings to a close a two-year legal battle launched against Warner by a musician and a filmmaker making a movie about the ubiquitous song.
Buy a signed copy of Bombed Out! here: http://www.bombedoutpunk.com/buybook.php
And to end, here’s the (copyright protected) Altered Images single, Happy Birthday, from a Top of the Pops appearance in 1981: