Innovation

An Unexpected Downside to the “Happy Birthday” Copyright Decision

by Mark Hay

October 9, 2015
Image by Will Clayton via Flickr

By now you’ve probably heard that late last month Judge George King of the US District Court in Los Angeles ruled the copyright on “Happy Birthday to You” invalid. Before this, music publisher Warner/Chappell claimed a 95-year ownership over the song, which, until 2030, would have forced anyone using it in public to pay startlingly high fees. And if the company doesn’t appeal the court’s decision, the most popular song in the English language, a simplistic eight-note ditty, will finally be part of the public domain. That’s a huge victory for the independent filmmaker who raised this latest legal challenge to the copyright in 2013 (and for humanity at large), correcting what commentators have long pointed out to be an absurd, weak corporate claim over mass culture. Yet there are losers in this case beyond Warner/Chappell. Perhaps one of the biggest losers is a little guy as well—an educational charity that might have been sustained by the song’s proceeds if Warner/Chappell hadn’t exceeded the bounds of reason in their apparently excessive greed.

The story of the disputed song and the pending loss this charity faces goes all the way back to 1893, when the sisters Mildred and Patty Hill published “Good Morning to All,” a song they’d invented for a kindergarten class in their native Kentucky. The simple tune (“good morning to you / good morning to you / good morning dear children / good morning to all”) took off. And by the industry’s account, inspired by its success, the sisters adapted the song’s lyrics to those we know now, cutting a deal to give their original publisher, the Clayton F. Summy Company, rights to the song in 1935. Summy turned into the Birch Tree Group, which was purchased by Warner/Chappell, and hence the copyright fell to this organization, which has continued to leverage fees and funds from the tune years after the last sister’s 1946 death.

Litigants in the case argued that songbooks from 1922 and 1927, discovered in archives at the University of Pittsburgh, featured the lyrics to “Happy Birthday to You” with no copyright mark, invalidating the mainstream narrative. Judge King did not share their views on the definitive proof of these books. But he did point out that the 1935 agreement actually pertained to a piano arrangement, not lyrics, and that there was no proof that the sisters had actually invented these new lyrics in the first place. So he believed that the copyright issued never extended to the lyrics we use today and hence was never valid to begin with.

A "birthday party"

This ruling is a big deal for all sorts of people—even bigger than those bringing the suit initially hoped for. Every year since 1999, according to a 2010 study by a professor at the George Washington University Law School, Warner/Chappell has managed to net about $2 million in licensing fees a year, charging up to six figures for a single use in some cases, and targeting everyone from filmmakers to chain restaurants and greeting card companies (some of whom don’t make great profit margins to begin with and can be hurt quite badly by an unexpected copyright claim or suit). Now these content producers can use a common song in their works, rather than rely on alternative songs or in-house monstrosities, bridging a gap between reality and culture that always felt a little weird. But beyond just that, by declaring that the copyright never really existed, Judge King opens up the possibility that now-joyous plaintiffs and others who’ve paid usage fees in the past can recoup their losses from 1988 on at least, and perhaps as far back as 1935. For independent artists especially, that’ll be a welcome influx of cash and source of restitution.

You might suspect at this point (as I know I did) that the unexpected losers in this case are the songwriters who made moderate bank on crafting alternative birthday tunes for film, television, and public venues. But many popular cheap alternatives were penned by bands that won’t miss a few cents here and there. And most other alternatives were either invented on the cheap by companies themselves, or as intentionally free options by those who’ve been irked by the Warner/Chappell copyright for years. Back in 2013, to celebrate the anniversary of the Creative Commons content license, the Free Music Archive and radio station WFMU held a contest for artists to create freely-licensed alternative songs—some of which were pretty good, but none of which took off. And in 2014, Stephen Colbert, in a long tradition of media mockery of the copyright, invented his own free version of the song set to the tune of “The Star Spangled Banner,” a public melody, including lyrics sticking it to the copyright holders.

Yet as it turns out, not all the fees Warner/Chappell collected went straight into their pockets. Apparently the Hill family designated a charity to receive a third of the song’s profits in perpetuity—the Association for Childhood Education International. Founded all the way back in 1892 as the International Kindergarten Union, this organization has worked for over a century to make sure that all children have access to quality early education, publishing research and books, hosting conferences, and carrying out a bevvy of projects worldwide. But they’re still not a huge outfit—you’ve probably never heard of them before unless you really know your educational NGOs. And according to 2012 tax returns, in that year alone, $754,108 of their budget came from the song’s royalties.

Image by Kiwi Morado via Flickr

The ACEI declined to comment on Judge King’s decision, or on how deeply the loss of royalties might cut into their funding and programs. That’s a logical position to take at this time, because the court case isn’t necessarily over. Although Warner/Chappell hasn’t made any moves to appeal the ruling, they still could. And the song is still under copyright elsewhere in the world, where it could still be challenged. Other claimants to the copyright could come forward now as well, although proving ownership over the lyrics would be next to impossible. Functionally, the song is liberated, but practically there’s still a long way to go before parties involved in the litigation can speak freely on the issue. Hopefully during that time the ACEI can modulate their programming or fundraising accordingly and adapt to the ultimate resolution of the song’s saga. But at present we don’t know what that would take. And as a charitable organization doing seemingly good work in the world, it seems wrong that the ACEI should have to suffer at all from the court’s act of cultural justice.

Perhaps if Warner/Chappell had been more public about the song’s importance to this nonprofit group, and less greedy in their demands on those who used the song, we could have cut a compromise in which the ACEI could still reap some benefits and small content producers wouldn’t get skewered for using the song. But Warner/Chappell was, by most reasonable (if not legal) standards, outrageous in their demands. In 1994, for example, the company demanded $5,000 from the indie director of Hoop Dreams for playing nine seconds of the song—far more than is reasonable in any world. In their greed, the publisher tipped the scales against any form of accommodation, screwing creators for years and now screwing a charitable organization. There’s no going back now. But it’s worth remembering that there was at least one unfortunate loser here, and that once all the dust settles, the ACEI will likely need additional support to continue their educational work around the world.  

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An Unexpected Downside to the “Happy Birthday” Copyright Decision