Despite common belief, a US music publisher claims that copyright in one of the most performed songs in the world, ‘Happy Birthday to You’, is still in effect and, as the rights holder, it is entitled to a royalty payment for every public performance of the song. However, in a recent development in the on-going federal lawsuit over whether the song is in the public domain, the lawyers of a New York documentary filmmaker claim to have uncovered new ‘smoking gun’ evidence that the ‘Happy Birthday to You’ song is not under copyright – and hasn’t been since 1922. They are claiming that this evidence clearly proves the song is in the public domain and no permission is needed to use it.

Origins of the ‘Happy Birthday’ song

The most famous anecdote of how the birthday celebration song was written dates back to 1893. In Louisville, Kentucky, kindergarten teacher Patty Smith Hill and her sister Mildred first published their song ‘Good Morning To All’ for which the melody to ‘Happy Birthday’ is based. The Beginners' Book of Songs published in 1912 is the first time the lyrics to ‘Happy Birthday’ were reportedly published. Various music and lyrics arrangements of the song were first copyrighted in the US as a ‘work for hire’ following litigation in 1935.

Who claims copyright in ‘Happy Birthday’?

Copyright is an intellectual property right and gives the owner the right to prevent others from copying the work, making copies available to the public, publicly performing the work or making adaptations of it. Today, Warner/Chappell Music Inc., the publishing department of the Warner Music Group, claims it is the sole copyright holder in ‘Happy Birthday’ globally. Warner paid around $25 million in 1988 to acquire the rights to the song from Birch Tree Group music publishers and it collects a reported $2 million a year in royalty payments for the song.

What does this mean?

Warner claims that the 1935 copyright registration and 95 year protection under US copyright legislation means that the American copyright will not expire until 2030. Warner argues that, until that time, unauthorised public performances of ‘Happy Birthday’ are technically illegal unless the performer pays the appropriate royalties to it. In practice, however, Warner cannot realistically enforce its claim for royalties every time the song is performed at a private party or event. Warner therefore restricts its royalty claims to tangible public use and performance of the song in films, theatre, radio and TV shows, and charges thousands of dollars for each licence.

New ‘smoking gun’ evidence

In 2013, Jennifer Nelson was filming a documentary movie about the history of the ‘Happy Birthday’ song. She agreed to pay Warner a $1,500 licence fee to use the song in her film. But, while making the documentary, she filed a lawsuit asking the court to find that the song is in the public domain and seeking class action status to compel Warner to return the millions of dollars in royalty fees it has collected while the song was in the public domain.

Last week, her lawyers claimed to have unearthed new evidence that the song is older than Warner claims. Nelson is contending that the song was freely available before 1935, without copyright notices or credits, and without any enforcement action taken by the alleged copyright owners. The crux of Nelson’s claim is that, as ‘Happy Birthday’ is in the public domain, anyone can reproduce it without paying a fee.

This will be old news to Associate Professor at George Washington University, Robert Brauneis, who, in a legal article entitled "Copyright and the World’s Most Popular Song’, concluded that it is “doubtful” that ‘Happy Birthday’ is still subject to copyright.

Warner filed a response a few days later resisting Nelson’s summary judgment application. Warner countered that the new ‘smoking gun’ evidence raises issues, such as common law copyright and the meaning of the term “special permission” in the credits of the pre-1935 songbooks, that can only be resolved at trial.

Music copyright in Ireland      

Copyright in Ireland is regulated by the Copyright and Related Rights Acts 2000 to 2007 (“CRRA”). Under the CRRA, copyright protects original works such as literary, dramatic, music and artistic works, sound recordings, films, broadcasts, software and original databases. Unlike the US, Ireland does not maintain a copyright register – copyright arises automatically once a work has been written down or recorded.

In Ireland, the usual term of copyright is 70 years from the date of the death of the author, although this does vary. For example, copyright on sound recordings, broadcasts, cable programmes and typographical arrangements expires 50 years after being lawfully communicated to the public. After the stated period has elapsed, the work will be in the public domain and can be freely reproduced.

Ireland, like the rest of Europe, operates a different copyright system than the US. Here, the publication date of ‘Happy Birthday’ is not relevant for the purposes of calculating the expiry date of copyright. This means that under the current Irish copyright regime and regardless of the outcome of Nelson’s case, it appears that any copyright in Ireland in ‘Happy Birthday To You’ would be due to expire in December 2016 (being 70 years from the date of the death of the author).

What next?

It remains to be seen how the court assesses Nelson’s new evidence and her claim for summary judgment in conjunction with Warner’s latest response. In any event, the practical outcome of the final judgment is most likely to only affect whether Warner can continue to collect royalties for the public use of the song in films, radio and TV shows and not the private use of the song at birthday parties. This will be a major relief for parents and one less thing for them to worry about at their child’s next birthday.