Ever Wonder Why You Don't Hear "Happy Birthday" Song in Movies or on TV?

09/03/2015 | Class Actions/Mass Torts

"Happy Birthday to You" has been copyrighted since 1935 and Warner Music Group has owned rights to the song since 1988.  The tune was first written as "Good Morning to All" in 1893 by two sisters from Louisville, Kentucky, Mildred and Patty Hill.  The lyrics then morphed into "Happy Birthday to You" with the earliest version entitled "Good Morning and Birthday Song" being recorded in a 1922 song book. 

A lawsuit has been filed in federal court in Los Angeles to remove the copyright from the song, making it public domain.  The lawsuit was brought by a group of independent artists and they cite the 1922 publication as evidence the song should be free from copyright.  1922 was the last year of the public-domain era.  Under the laws of the time anything published without a copyright notice would mean any copyright has been forfeited.  In addition, a 1998 law states anything published before 1923 is public domain.  Warner argues this 1922 publication was invalid because it was not authorized by the songs creators, the Hill sisters. 

Soon after the lyrics morphed from "Good Morning" to "Happy Birthday" the song became a phenomenon.  It was used in movies and singing telegrams in the 1930s.  In 1933 the song appeared in Irving Berlin's "As Thousands Cheer" and a lawsuit was filed, leading to the 1935 copyright.  The first copyright was registered to Clayton F. Summy Company, the Hill sisters' publisher.  Ownership of the copyright changed hands several times until Warner acquired it in 1988. 

Because the song is copyrighted it is considered private property, that of Warner Music Group, and anyone who uses the song must pay Warner a licensing fee.  If the federal judge rules the copyright should be removed, Warner will lose millions from those fees.  Some estimates indicate the song generates about $2 million in licensing fees each year, mostly from its use in TV and movies.  This explains why the song is often replaced in moves and TV shows, often with "For He's a Jolly Good Fellow," so the makers of movies and TV shows do not have to pay the licensing fee. 

The lawsuit seeks class action status, and seeks to make the song public domain and for Warner to return licensing fees dating back to 2009.  Plaintiffs in the suit claim Patty Hill wanted to give "Happy Birthday to You" to the public and removing the copyright would give it back.  If the judge does not remove the copyright it will remain until 2030 when presumably, it will be renewed. 

Recently, a professor at the University of Louisville found a manuscript of the song at the University, dating back to the early 1890's and still entitled "Good Morning to All."  The manuscript had been donated to the University in the 1950's by the Speed family.  It was cataloged but then lost.  It was found in a file cabinet in the University's Music Library.