A battle between the Marvin Gaye family and Robin Thicke has most recently dominated the talk in copyright circles (for those who missed it, the Gaye estate won a copyright infringement suit against Thicke alleging that “Blurred Lines” infringed on Marvin Gaye’s “Got To Give It Up”). But a copyright battle that might actually affect many more of us is underway in a federal court in California. And the question there is whether the song “Happy Birthday” is protected by a copyright or whether the song is in “the public domain.”
The answer is worth a considerable amount of money to the company that ostensibly owns the copyright -- Warner/Chappell Music. A production company called “Good Morning to You Productions Corp” is producing a documentary about the song. In the course of making the film, they were charged a $1500 fee to use the song. Good Morning filed a lawsuit on behalf of itself and all others who have been forced to pay royalties to use the song. If Good Morning prevails, Warner/Chappell may be forced to return millions of dollars it’s collected over the years.
It’s an interesting case, and it goes all the way back to 1893. That’s when sisters Patty Smith Hill and Mildred Hill wrote a song called “Good Morning to All.” It’s the same tune, and the “Happy Birthday” lyrics came about when sister Patty would change the lyrics to fit different occasions when she sang the song to her students.
The Hill sisters allegedly sold the rights to the lyrics and tune in 1893 to Clayton Sammy. A copyright application was filed in 1935, but Good Morning argues there is evidence the song was published and sung long before then, so much so that the song was in the public domain as of 1935.
If Good Morning is right, the song was not copyrightable at that point. While the particular arrangement submitted to the copyright office in 1935 is possibly copyrighted, that is slim comfort to Warner/Chappell, which has apparently demanded a license fee for any version of the song.
So just think about this the next time you lean over a cake to blow out candles. Lawyers, we’re everywhere! And that’s a scarier thought than another birthday!