“Happy Birthday” To Enter The Public Domain

In 1893, a kindergarten principal named Patty Smith Hill and her pianist sister Mildred Hill wrote “Happy Birthday,” also known as “Happy Birthday To You.” It went on to become an American standard, one of those songs everybody can sing along to in their sleep, but the Hill sisters never published or copyrighted the song. Forty-two years later, in 1935, the Summy Company registered a copyright on “Happy Birthday,” crediting Preston Ware Orem and Mrs. R. R. Forman as its authors. Fifty-three years after that, in 1988, Warner/Chappell purchased the company owning the copyright and began collecting royalties on all known performances of “Happy Birthday.” Per Warner’s logic, since the song wasn’t registered until 1935, its copyright lasts until 2030 under US law, which states that works dated before 1978 remain under copyright for 95 years from the year of its first publication.

Enter film director Jennifer Nelson, who was asked to pay a $1,500 license fee while making a documentary about “Happy Birthday.” In June 2013, Nelson filed a class action lawsuit against Warner via her production company Good Morning to You Productions, citing law professor Robert Brauneis’ research indicating that the song should no longer be under copyright. Last September, a federal judge declared that Warner’s claim was invalid because the 1935 copyright held by Warner/Chappell applied only to a specific piano arrangement of the song, not the lyrics or melody. That decision proved that Warner did not hold a copyright on “Happy Birthday,” but it didn’t render the song public property.

That will change soon. Billboard reports that on Monday, Warner agreed to a $14 million settlement that ends the lawsuit and enters “Happy Birthday To You” into the public domain, pending the signature of US District Judge George H. King. According to the terms of the settlement, Warner agrees not to appeal the decision but avoids being punished for collecting licensing fees under what turned out to be a faulty copyright. Here’s a memo that accompanies the settlement:

The judicial determination that ‘Happy Birthday’ is in the public domain also has substantial value. Because Defendants have charged for use of the Song, untold thousands of people chose not to use the Song in their own performances and artistic works or to perform the Song in public. This has limited the number of times the Song was performed and used. After the Settlement is approved, that restraint will be removed and the Song will be performed and used far more often than it has been in the past. While there is no way to make a reliable estimate of the increase that will result, there can be no dispute that the increase will be substantial.

Nelson and the other plaintiffs in the suit are seeking $4.62 million of the $14 million settlement. The rest will be split among qualifying parties who have previously paid to license “Happy Birthday.”