Age of the Geek

Happy birthday for free
 
     I turned 31 last week and one of the most interesting gifts I got for my birthday came from California District Judge George King. The day before my birthday, Judge King issued a ruling that did away with the copyright to the classic song, “Happy Birthday To You.”
     Most people have probably learned, at one time or another, that “Happy Birthday To You” has a copyright. It’s a funny bit of trivia that doesn’t really affect many people outside of restaurant staff forced to come up with creative alternatives less they risk being sued for an unauthorized performance.
     The suing, in this case, comes from Warner/Chappell Music, who, up until last week, brought in hundreds of thousands, if not millions of dollars a year for the use of that particular arrangement of six different words. Warner/Chappell is owned by Warner Music Group, which was founded by Warner Bros, but is not, in fact, currently owned by them.
     Warner Music Group went independent from AOL Time Warner in 2004 and is currently owned by a conglomerate called Access Industries, which is owned by a Soviet born British billionaire named Leonard Blavatnik.
     None of this is relevant to the matter at hand, but I do kinda wonder if Blavatnik even knew that, until last week, he owned the rights to one of the most popular folk songs in the world.
     Anyway, let’s go back a hundred years and change to 1893.
     Sisters Patty and Mildred Hill came up with a short little song for school children called “Good Morning To All.” The sisters sold the song, among others, to one Clayton Summy, who published the songs in a book called “Song Stories for the Kindergarten.”
     Within a decade of their songs being published, somebody came up with the idea to replace the lyrics of “Good Morning To All” with something appropriate for a birthday celebration. The adapted song, to use a modern term, went viral. The first known print reference to the new lyrics appeared in a 1901 article from an Indiana school journal.
     References to the song were found in other documents in the following decade, but never with an attribution to the writer of the lyrics. As the song fell into common usage over the next forty years, it was eventually incorporated into movies and plays.
     Then, in 1934, Jessica Hill, sister of Patty and Mildred, filed a lawsuit against the producers of the Broadway play, “As Thousands Cheer,” which used the birthday song. Interestingly, Hill’s suit was based around the fact that the song used the same melody as “Good Morning To All,” which she held the copyright for, and not specifically the lyrics of “Happy Birthday To You.”
     It was in this case that Patty Hill (Mildred had long since passed away) testified that she had originally written the lyrics to both songs. This will be important in a minute.
     The records about the outcome of that case have been lost to history, but the next year, the Clayton F. Summy Company registered copyrights to “Happy Birthday To You.” However, the details of the copyright are unusual. They list the author to be a Preston Ware Orem, who nobody on either side of the lawsuit contends wrote the song. The copyright registration doesn’t make it clear that lyrics were being registered either, although for eighty years now that has been the assumption.
     The Summy Company was bought out by Warner/Chappell in 1988 and have continued to exploit the copyright since, with its current term set to expire in 2030.
     Ironically, the copyright to “Good Morning To All” the song in the story of which there’s no dispute who wrote it or owned it, expired without incident in 1949, putting it in the public domain.
     In all likelihood, Warner/Chappell would have held onto the copyright to “Happy Birthday To You” indefinitely, happily collecting royalty fees from everybody wanting to use the century old song. And I’m betting the poor paralegal that sent that bill to Rupa Marya a couple years ago thought it was just another Tuesday, completely unaware that they were about to trigger a court case that may cost Warner/Chappell billions.
     Rupa Marya sued Warner/Chappell to make them prove that they actually legitimately owned the rights to “Happy Birthday To You,” and, as it turned out, they didn’t.
     More specifically, it was found that The Summy Company never actually had a legal right to copyright the lyrics, just the piano arrangement. The fact is that there’s no evidence that the Hill sisters came up with the lyrics and even if they had, they made no attempt to copyright them even as the song grew in popularity over the decades.
     Even when they did assert their rights in 1934, it was only for the melody of “Good Morning To All,” not the lyrics of “Happy Birthday To You.”
     There’s no record that the Hill sisters ever owned the rights to the lyrics in the first place, much less transferred those rights to the Summy Company. Whatever it was that the Summy Company tried to register for copyright in 1935, it wasn’t the lyrics. Or if it was, it shouldn’t have been.
     The long and short of it is that this means that “Happy Birthday To You” can now be used freely without the fear of royalty fees. In fact, executives at Warner/Chappel are probably having very serious conversations about the possibility that they may have to pay back improperly gained royalties all the way back to 1935.
     I have a lot more to say on this topic, but this column is already getting pretty long so let’s make it a two-parter. Come back next week to find out about the Mickey Mouse Protection Act of 1998 and my mixed feelings about the “use it or lose it” policy.
 
     Travis Fischer is a news writer for Mid-America Publishing and prefers presents over singing anyway.