The song “Happy Birthday to You” might be sung 311 million times a year in the United States -- give or take. It’s one of the most popular songs in the world. It’s been translated into Navajo and Maori and many other languages.
But there’s a legal dispute about the copyright. New York filmmaker Jennifer Nelson wants to use a performance of the song in her documentary, tentatively titled “Happy Birthday." It’s about the song and its history. She was required to pay a $1,500 licensing fee to the copyright holder, Warner/Chappell, the publishing wing of Warner Music Group, one of the world’s biggest music-media companies.
In a lawsuit filed Thursday, June 13, in federal court in Manhattan, Nelson claims that the birthday song is actually derived from a popular tune of the late 1800s that had different lyrics, and that the new lyrics -- combined with the melody -- were never properly copyrighted and should now be in the public domain.
A search on YouTube will find pages and pages full of “Happy Birthday” song-videos posted by parents. While the parents and friends who post them may not be hit up by Warner Music for copyright infringement, a professional holding a fancy camera is a different story. There are thousands in royalties to be made for each use, says attorney Mark Rifkin at New York law firm Wolf Haldenstein Adler Freeman & Herz LLP. Rifkin represents filmmaker Jennifer Nelson in her lawsuit.
“For a small documentary film producer,” says Rifkin, “I think $1,500 is a lot of money. But the principle is also important to her. She wants to see that the song is given back to the public.”
Other filmmakers have paid more than Nelson. Steve James reportedly paid $5,000 to use the song in the 1994 documentary “Hoop Dreams.” Rifkin’s lawsuit -- for which he’s seeking class-action status -- wants a return of all royalties paid to Warner Music for the song since 2009.
The lawsuit argues that the copyright to the song doesn’t properly belong to Warner Music or anyone. Rifkin explains the history as his firm and legal scholars have reconstructed it: “There was a song that was written in the 1890s by Patty Smith Hill and Mildred J. Hill called ‘Good Morning to All,’” Rifkin says. “It’s the same melody. And then the public just simply began to sing, ‘Happy Birthday to You, Happy Birthday to You’” to the same melody.
It's sort of like early 20th century crowd-sourcing. “There certainly could be copyright on new lyrics plus an old melody," says George Washington University Law School professor Robert Brauneis, an expert in intellectual property and copyright law. "That’s happened many times in the history of music.” But he says there’s just no evidence that happened with the birthday song.
Brauneis has written an article on the song, titled “Copyright and the World’s Most Popular Song.” He’s found that a specific piano arrangement was copyrighted in 1935. However, he doesn’t think that copyright covers other versions and performances of the song, and he hasn’t found other copyrights covering the uses Warner Music claims to still control.
A spokesperson for Warner Music Group declined to comment on the lawsuit and the copyright issue.
Robert Brauneis has estimated that Warner Music makes approximately $2 million per year licensing movie and TV uses of the “Happy Birthday” song, as well as public performances in venues such as bars and restaurants. Brauneis says the company could make more, but: “There are some chain restaurants that have written their own birthday songs, precisely to avoid having to pay royalties,” he adds.
Some filmmakers may not have that option, says Dan Cryan, an entertainment-industry analyst at IHS Global Insight. For narrative reasons -- or, as in the case of Jennifer Nelson’s documentary, because the “Happy Birthday” song is central to the film’s theme -- movie producers will simply pay the royalties for copyrighted music they need.
Lower budget productions will try to avoid these costs if they can. “If you go around to smaller, independent production houses, it’s fairly standard to find CDs filled with royalty-free music," says Cryan.
“When you have one of the most popular songs in the world, and it’s still notionally in copyright, the potential royalties from it are considerable,” he says. “That’s why it becomes such a hotly contested question when somebody thinks they’ve got a reasonable quantity of evidence to suggest that the copyright may be either not valid, or significantly smaller in scope, than had previously been thought.”
The copyright on the birthday song that Warner Music purchased along with other assets when it acquired a smaller music publisher, Birchtree Ltd., in 1988) dates to 1935. Robert Brauneis says, assuming the copyright is upheld, that would entitle Warner Music to royalties for 95 years, through 2030.