Breaking: #HappyBirthday Now Free to Use

After a bizarre and long legal battle, Happy Birthday to You is now in the public domain and can be used in movies and TV shows without costing huge royalties.

In a decision late Tuesday, Judge George H. King in the US District Court for the Central District of California in Los Angeles ruled that publishing company Summy Co., later Warner/Chappell, failed to obtain the copyright ownership for the lyrics to the 122-year-old song back in 1935, making the song fair use for anyone who wants to use it.

As noted in the 43-page decision, the melody for the song is the same as Good Morning to All, written by sisters Mildred and Patty Hill sometime before 1893, when the book in which the song was included was first published. Mildred and Patty signed over the rights to the song to Clayton Summy that same year, which is when the book Song Stories for the Kindergarten was released. A third sister, Jessica, renewed the copyright to the book in 1921, and as a result, anyone who used the song would have to pay royalties to the publishing company for its use, as ordered by the Copyright Act of 1909. The copyright was in place for two consecutive 28-year terms, meaning it expired in 1949.

While authorship of the lyrics for Good Morning to All is clear, the person responsible for Happy Birthday to You is murkier, the decision continues. “The Happy Birthday lyrics did not appear in Song Stories. The first reference to them in print appeared in an article from 1901 in the Inland Educator and Indiana School Journal,” which described students sitting in a circle singing the song to celebrate a birthday. The first appearance of the lyrics to the song we all now know came in 1911, in The Elementary Worker and His Work, but no one was credited with writing the lyrics.

By 1934, the song had appeared in a handful of movies and plays, and Jessica Hill filed a lawsuit claiming the copyright had been infringed upon, but for Good Morning, not Happy Birthday. In 1935, Summy Co. registered copyrights to both songs, but there’s been no evidence a contract from 1935 or prior about the registration of the songs, the decision continues.

“What little information we have about the circumstances under which [the copyright] was published and registered comes from a federal lawsuit filed in 1942 by the Hill Foundation—an entity formed by Jessica and Patty—against Summy Co. in the Southern District of New York,” the ruling notes. A new agreement was reached in 1944.

The current lawsuit was brought about in 2013 through the production of a documentary, of all things. Plaintiffs Rupa Marya, Robert Siegel, Good Morning to You Productions Corp. and Majar Productions LLC claimed that the publishing company, now Warner/Chappell Music, had illegally and unfairly collected millions in usage fees without owning any rights to Happy Birthday.

“Even assuming that the lyrics were printed in the deposit copy for [copyright license] E51990, it is unclear whether those lyrics were being registered, and therefore it is unclear whether the Copyright Office determined the validity of Summy Co.’s alleged interest in the lyrics in 1935,” the judge says. The registration was flawed from the start, as another person, not one of the Hill sisters, was listed as the author of the lyrics to Happy Birthday, but that person’s name was not mentioned on the registration.

“Because this registration does not list any Hill sister as the author or otherwise make clear that the Happy Birthday lyrics were being registered, we cannot presume this registration reflects the Copyright Office’s determination that Summy Co. had the rights to the lyrics to copyright them,” the document says. “For decades, with the possible exception of the publication of The Everyday Song Book in 1922, the Hill sisters did not authorize any publication of the lyrics. They did not try to obtain federal copyright protection. They did not take legal action to prevent the use of the lyrics by others, even as Happy Birthday became very popular and commercially valuable. In 1934, four decades after Patty supposedly wrote the song, they finally asserted their rights to the Happy Birthday/Good Morning melody—but still made no claim to the lyrics.”

As a result, the publishing company holds no ownership to the copyright for Happy Birthday. It is not immediately clear whether Warner/Chappell will have to surrender any of the royalties it has collected for use of the song in the past few decades. The LA Times notes that the song brings in about $2 million per year to the company.

A spokesperson for Warner/Chappell told Variety that the company is “looking at the court’s lengthy opinion and considering our options.”

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