[Robert Brauneis, guest-blogging, April 29, 2008 at 3:38pm] Trackbacks
Happy Birthday II: 115 Years of Copyright, and 22 More to Come?

Yesterday, my post to this fine forum argued that there were good policy reasons for granting Patty and Mildred Hill copyright protection for the melody of "Happy Birthday to You." Don't worry, they got it. Their book "Song Stories for the Kindergarten," which contained the "Happy Birthday" melody with different words under the name "Good Morning to All," was duly registered with the Copyright Office before publication in 1893. At that time, the Hill sisters would have been looking forward to a total of 42 years of copyright protection. The Copyright Act of 1909, however, gave them (and every other copyright holder) an additional 14 years of copyright -- by modern standards, a modest windfall. That brings us to 1949, when "Song Stories for the Kindergarten" took in its last royalty payment and expired, that is, entered the public domain.

Fast forward to 2008. Warner Music Group is pulling in about $2 million a year from "Happy Birthday to You." It's counting on that stream of income to keep flowing until 2030. What happened?!?

The very short answer is that WMG is not claiming copyright in the melody, but only in the combination of the melody and the words, which it claims was first copyrighted in 1935. These days, a properly renewed 1935 copyright is good for 95 years; 1935 plus 95 equals 2030.

Granting a new copyright for combining an old melody with new words, or even an old melody with old words, is not necessarily a bad thing. For example, a hymn called "Materna" and a poem called "America" both remained relatively obscure until the day that someone thought to combine them, and then voila!, "America the Beautiful" appeared. The right combinations can be of enormous cultural value, and to my mind there's nothing wrong with offering the incentive of copyright protection to experiment with new combinations.

In this case, however, the story's not that simple. There is very good evidence that the "Happy Birthday to You" words were already being sung to the Hill sisters' melody back in the 1890s. Moreover, those words and melody appeared together in many published songbooks in the 1910s and 1920s. Thus, WMG's claim that the song is still under copyright has to be much more complicated. We don't know exactly what WMG's litigation position would be, because there hasn't been any litigation about the combination of words and melody. (There was some litigation in the 1930s and 1940s, but that was about the melody alone, which was still under copyright at the time.) Here's my best guess about what WMG would have to assert:

(1) Patty and Mildred Hill actually wrote the "Happy Birthday to You" words back in the 1890s, but they did not authorize anyone to publish them until 1935. All of the songbooks in which the song appeared in the 1910s and 1920s were infringing.

(2) In 1935, the combination of "Happy Birthday" words and music were published in an authorized version with proper copyright notice (which was the necessary formality for gaining federal copyright protection at the time).

(3) In 1962, copyright in the "Happy Birthday" words and music was properly renewed.

I've spent a lot of time investigating whether these assertions are true. (I also take a lot of pages in my article draft to evaluate the assertions, which may be one reason why I haven't yet placed the article -- law review editors take note, I'll accept an offer conditioned on cuts!) It turns out that all three assertions have serious problems.

I'll discuss those problems in a post tomorrow. For now, let me just say that it seems quite clear that, back in 1935, no one associated with "Good Morning to All" was thinking that publishing it with the "Happy Birthday" words would extend copyright past 1949. For example, the registrations for the versions of the song published in 1935 claimed copyright only in the arrangements made by the publisher's employees-- piano accompaniments and the like -- not in the song itself. And those 1935 versions credit only Mildred Hill, the musician sister who wrote music for dozens of published songs but never once wrote lyrics; they fail to credit lyricist Patty Hill.

Yet, as Dr. Johnson would have said, when a music publisher knows that his successful song will soon slip into the public domain, it concentrates his mind wonderfully. As 1949 approached, someone came up with a colorable theory under which royalties for the use of "Happy Birthday to You" could be demanded until the distant year of 1991 -- which, thanks to repeated Congressional largesse, has now receded to the still-distant year of 2030.