The headlines on Tuesday and Wednesday blared, “Happy Birthday found to be in the public domain.” Unfortunately and confusingly, they were incorrect. A judge’s ruling in a suit filed two years against the ostensible current rights holders for the lyrics to that song, Warner-Chappell Music, didn’t decide that. Instead, the judge found that Warner-Chappell lacked valid rights to the lyrics, whether or not they remained under copyright protection, even as it collected fees to the tune of $2 million a year.
The lyrics—but not the music—may still have outstanding legal protection almost 125 years after they were allegedly conceived. Worse? It may never be known for sure whether those rights exist. They are in a state of copyright quantum superposition, like Schrödinger’s Cat: Without a full trial, one that almost certainly won’t take place, no one can know for sure.
Many people and organizations will likely feel free to use the song from now on, but they can’t be sure that some individual or entity might try to sue them later, such as a charity that’s been a long-time beneficiary of licensing fees. For studios and publishers, “Happy Birthday” could now be entirely off limits until 2017 or 2030—as explained later—because the lyrics lack either an adjudicated public-domain status or a party that offers a license.
“We always have a gray area between songs that everyone assumes are public domain and what’s officially designated public domain,” says Bob Schooley, a veteran animated series writer and producer, and co-creator of Kim Possible. Schooley says he’s “pretty sure for our purposes, the public domain status would have to be verified to be free to use.”
The plaintiffs in the suit, including a filmmaker who had planned to make a movie about the song before launching this action, plan to try for class-action certification to force Warner-Chappell to issue refunds dating back years or decades. That the situation persisted this long and still lacks resolution is a teachable moment about orphaned works. “Happy Birthday” may be the oldest orphan ever.
Because copyrights exist at creation independent of any registration, and because rights’ owners don’t have to defend violations to maintain those rights, millions to as many as tens of millions of copyrighted works are “orphans.” They remain under regulatory protection dating back to 1923—and much earlier for unpublished manuscripts—but no owners can be found. The creators may be dead and left no heirs or bequests, a firm may have gone bankrupt without its assets being purchased, or the owners have no idea that they possess rights. (It’s suspected that Omni magazine’s rights are in this last limbo.)
There’s currently no way to reduce the risk of using work that remains in copyright, even if you acted out of ignorance, believing it to be in the public domain. You can always be sued and rights holders win easily—though damages vary based on intent and other factors—if they meet basic standards for proving creation and ownership.
The saga of “Happy Birthday” began in the late 1880s, when a pioneering early-childhood development educator, Patty Hill, worked with her sister Mildred, a musicologist and composer, to create a series of songs that could be used to help guide young, often destitute children through the activities of a kindergarten’s routine. In 1893, a collection of these songs was published by the Clayton F. Summy Company, with the sisters retaining the copyright.
However, the lyrics to “Happy Birthday” weren’t in that book. Instead, the familiar music had “Good Morning to All” sung to it, a ditty to start the day with separate refrains for a teacher and children. There’s no doubt that the 1893 publication of the tune means that its melody left copyright protection long ago. A work published in 1893 had its protections expire 28 years later at the end of 1921; this predates the many extensions that occurred later. (There’s some dispute about whether the tune was original or adapted, but that’s not an issue here.)
While simple and repetitive, these verses qualify for copyright protection as a unique expression separate from the tune.
Happy birthday to you,
Happy birthday to you,
Happy birthday, dear [name],
Happy birthday to you.
But did Patty (and likely not Mildred) write the few words that comprise the “Happy Birthday” lyrics?
It wasn’t until a lawsuit in 1935, years after Mildred had died and bequeathed her rights to another sister, Jessica, that any mention of the lyrics emerged. During the present 2013 lawsuit, it was found that “Happy Birthday” lyrics had been published many times between 1900 and 1935, sometimes with the music, though allegedly never approved by the sisters. In a 1922 book, discovered just a few weeks ago and just before the judge was slated to issue an opinion, it was included, and sported an improperly formatted copyright notice for the Summy Company, which had no rights at the time. (Summy went through several transformations, and there may be no continuity of ownership, and thus the rights it legitimately possessed might have perished many decades ago.)
In the current suit, Judge George H. King’s ruling in U.S. District Court centers around 1935 and a rights assignment at that time to Summy Co., which was also litigated in the 1940s when the sisters felt they were being stiffed. The summary judgment of the case found:
Because Summy Co. never acquired the rights to the Happy Birthday lyrics, Defendants, as Summy Co.’s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics.
This means that no entity from 1935 to the present that collected royalties owned valid rights to do so. This would seem to settle matters, right? But it doesn’t provide an answer about the public domain, only about the fees paid to Warner-Chappell.
While the judge spent 17 pages of a 43-page ruling discussing whether or not the Hills wrote the lyrics and, if so, retained ownership to them under pre-1909 common-law rights or later federal statutes, he issued no definitive statement. On most points, he suggested the issues of fact would be decided at a full trial, one that was avoided by his ruling just on whether valid rights were transferred.
The author of a seminal 2008 paper on “Happy Birthday,” Robert Brauneis, says that once the judge decided Warner-Chappell didn’t own rights, there was no one left in the lawsuit with standing, and thus whether rights existed or not was moot. (Brauneis is a professor at George Washington University Law School, and an unpaid consultant for the plaintiffs.) The music firm may yet appeal, though the judge’s thoroughness makes it unlikely a higher court would find the sort of error required to overturn or reconsider the ruling.
The only likely group that has standing to pursue legal action if they demanded royalties and didn’t receive them is the charity that became the ultimate beneficiary of the Hills, the Association for Childhood Education International (ACEI). It has received a third of royalties collected by Warner-Chappell for decades, or roughly $750,000 a year in recent years. Should ACEI choose to attempt to enforce rights, sue Warner-Chappell, or carry out any other action, it has just two bases on which it could proceed. (Diane Whitehead, the executive director of ACEI, says, “We are not commenting at this time.”)
Patty Hill could have created the lyrics, written them down in some form, and never authorized publication. Unpublished manuscripts retain protection for 70 years following the last author’s death, even for works this old. Patty died in 1946, and thus in this scenario, copyright expires on January 1, 2017. (Mildred likely had nothing to do with the lyrics, but her earlier demise makes that irrelevant.)
However, the Hill sisters in the 1940s lawsuit maintained that they had made a transfer of rights in 1935. These are the rights that the judge said didn’t exist. That ruling could leave the unpublished rights active. But Brauneis says, “We don’t know that Patty Smith Hill ever wrote anything down.” No manuscript has ever been mentioned nor presented across multiple trials and 125 years. This also requires that the Hills never “abandoned” the rights, a complicated concept, but Brauneis says his reading of the judge’s ruling is that King leaned toward that interpretation.
And just to add to the confusion, the manuscript form of “Good Morning to All” was discovered on September 1 at the University of Louisville, the city in which Patty and Mildred composed the songs. No mention of “Happy Birthday” is in that manuscript.
The ACEI could proceed on the idea that a valid copyright registration took place in 1935, and then if it sued parties who wouldn’t pay license fees, would have to defend that assertion in civil court. Brauneis says that King’s ruling isn’t binding on other suits, but it does set a high bar. If that 1935 registration were proved, then the work would be protected—due to many copyright extensions passed into law in the interim—for 95 years, expiring at the end of 2030.
“What we do know is that Warner-Chappell doesn’t own the rights to the lyrics because they were never transferred to Summy Co., and that they probably owe at least three years worth of royalties,” says Jennifer Jenkins, the director of the Center for the Study of the Public Domain at Duke Law School. “What we don’t know is what actually happened so very long ago. Are the lyrics in the public domain? In all probability, yes, whether because of divestive publication [without a proper copyright notice], abandonment, or non-renewal.” However, as she notes, it remains a probability, not a certainty.
Just the possibility of rights and a rights holder would have the most prudent user of the song treat it as an orphaned work. Some proposals at the Copyright Office would offer a good-faith exception: Only reasonable and typical license fees would be owed later if a party that wanted to use a work had made a good-faith effort to find copyright holders and had failed. But those remain proposals.
The uncertainty is maddening to those who need clear licenses with media attorneys or insurance underwriters for books, movies, and other forms of entertainment, as well as restaurants and clubs, in which singing “Happy Birthday” has been avoided.
“It would be terrible if the effect of this decision were to put ‘Happy Birthday’ in limbo, and now nobody uses it, because they can’t find anybody who would license them, and yet there was no declaration as to the public domain, either,” says Brauneis.
It’s legal to hum the song, but without clarity, you’d better make up your own words.