[Robert Brauneis, guest-blogging, April 28, 2008 at 4:16pm] Trackbacks
"Happy Birthday" I: The Half-Full Cup of Copyright.

My thanks to Eugene for the opportunity to address the Volokh Conspiracy audience and get some feedback on my article "Copyright and the World's Most Popular Song."

Supporters of copyright will no doubt like some of the things I have to say in the piece; questioners will like others. I'm going to start off with an aspect of the piece that's relatively pro-copyright.

The melody of "Happy Birthday to You" is quite simple and folksy. No one would confuse it with a song by Schubert or Cole Porter. Thus, one might think that it was probably created by the accretion of incremental contributions so small that none of them would qualify for copyright protection. One might also think that copyright protection wasn't needed to motivate its composition or dissemination, and that, in any event, it is not the kind of sophisticated music that copyright is really meant to promote.

What I have learned about the history of "Happy Birthday to You" has led me to question all of those thoughts. The melody of that song -- originally published with different words as "Good Morning to All" -- was the product of an intensely focused and extended creative process. Patty Smith Hill and Mildred Jane Hill, the two sisters who composed it, started with a specific goal in mind. They wanted a melody that could be easily sung and remembered by kindergarten students, yet would also have an emotional punch.

Because Patty was the principal of a kindergarten, the Hill sisters had a laboratory in which they could test melodies. And that's what they did. They would compose a song; bring it into the kindergarten; see how easily and enthusiastically the children would learn and sing it; and then go home in the evening, make changes, and bring the next draft into the kindergarten the following morning.

Out of many such rounds of testing came the "Happy Birthday to You" melody. It turns out that it's a melody that not only children but also adults with little musical talent can remember and sing a few times a year, building to that satisfying catharsis of the high note in the song's third line, celebrating a milestone of life.

The Hill sisters did not invent the melodic, harmonic, or rhythmic vocabulary they were using. But as far as I can tell, they were not just tweaking an existing melody either. Moreover, though they were not professional composers, they were quite aware of copyright. Patty told the kindergarten teachers that they could sing the song all they wanted, but that they should not write it down, because that would endanger copyright protection. (At the time, publishing a work before registering it with the Copyright Office would forfeit copyright.)

Where does this all lead? First, even simple melodies don't necessarily spring up without people devoting time and care to them. Many "folk songs" likely have authors whose identity has just been lost to our collective memory. Second, even nonprofessional composers who aren't seeking to get rich from a song may desire copyright protection, because they understand that it is important to publishers who invest in disseminating that song.

Finally, lowbrow domestic music may be worth promoting with copyright protection just as much as highbrow concert hall music. As much as I love Schubert and Cole Porter, I'm willing to concede that their entire output has probably not contributed as much to the happiness of humanity as a simple song by two unknowns, as sung in groups large and small by millions of people around the world every day.