Judge ends years of legal rows by ruling track believed to have been written by kindergarten teacher and once sung by Marilyn Monroe is in public domain
Happy Birthday, possibly the world’s most popular song since a version was first sung in a Kentucky kindergarten more than a century ago, is finally free from copyright after a fiercely contested court battle.
The song is believed to have been composed by a teacher, Patty Hill, with her sister Mildred, a pianist, and sung as Good Morning to All by children sometime before 1893. The decision by a judge in Los Angeles that the lyrics are in the public domain could now cost Warner/Chappell Music Inc, the publishing company, millions in lost royalties.
A US district judge, George H King, ruled that copyright – obtained from the Hills by Clayton F Summy Co in 1935, later acquired by Birch Tree Group and then bought by Warner/Chappell, a division of Warner Group, in 1988 – only covered specific piano arrangements of the melody and not its lyrics.
The legal action was brought by the makers of a documentary about the history of the song. They also argued the music publishers should be compelled to return the “millions of dollars of unlawful licensing fees” collected over years. It is claimed the song makes Warner/Chappell about £2m a year.
“Happy Birthday is finally free after 80 years. Finally, the charade is over. It’s unbelievable,” said Randall Newman, a lawyer for the complainants.
The long and legally tortuous history of the song began in the late 19th century when the Hills wrote Good Morning to All as “a song that even the youngest children could learn with perfect ease”, with Mildred composing the music, and Patty the lyrics: “Good morning to you, Good morning to you, Good morning dear children, Good morning to all”.
They later assigned their rights to Summy Co and it was published in a songbook called Song Stories for the Kindergarten.
The origins of the lyrics to Happy Birthday, however, were less clear and, although sung to the same melody, may not have even been written by the Hills, the court heard.
References to a Happy Birthday song first appeared in 1901, in the Inland Educator and Indiana School journal, but no lyrics. The full lyrics, as they are known today, first appeared in a 1911 book entitled The Elementary Worker and his Work, which mentioned it shared the same melody as the Good Morning song. This and another publication of the lyrics in Harvest Hymns in 1924 were registered for copyright by at least two other authors, not the Hills.
In the 1930s, Happy Birthday appeared in a series of films, including Girls About Town, Bosko’s Party and The Old Homestead. By now it was extremely popular, and in 1933 it was performed publicly in a play entitled As Thousands Cheer.
The Hill family sued for breach of copyright as a result of the play – but over the melody not the words, the court heard. A Time magazine report at the time stated: “Lyricist Patty Hill, who will share the damages, if any, had no complaint to make on the use of the words because she long ago resigned herself to the fact that her ditty had become common property of the nation.”
Patty claimed she wrote the lyrics to Happy Birthday around the time Good Morning was created. But she had no proof, the court ruled, and her 1935 claim to authorship – some 40 years later – could have been “a post-hoc attempt to take credit for the words that had long since become more famous and popular than the ones she wrote for the classic melody”.
The judge ruled there was no evidence Summy Co – who had sold rights to the song to film and stage producers – had ever obtained the rights over the lyrics from the Hills. An agreement between him and the Hill family examined by the court found it described the agreement as transferring right in “piano arrangements” .
“Obviously, pianos do not sing. Thus, it is not logical to infer the rights to ‘piano arrangements’ would include rights to any lyrics or words,” said King.
He said it was not clear whether Patty wrote the lyrics, but even if she did, neither she nor her family “ever did anything with their common law rights in the lyrics”.
“They did not take legal action to prevent the use of the lyrics by others, even as Happy Birthday became very popular and commercially valuable,” he said. “In 1934, four decades after Patty supposedly wrote the song, they finally asserted their rights to the Happy Birthday/Good Morning melody – but still made no claim to the lyrics.”
He concluded the Hill sisters gave Summy Co the rights to the melody and piano arrangements based on the melody “but never any rights to the lyrics”.
Warner/Chappell, which said it only collects royalties from those using the song in a commercial enterprise, said: “We are looking at the court’s lengthy opinion and considering our options.”
The lawsuit was filed two years ago by Good Morning to You Productions Corp, who are working on the documentary about the song’s history.
(CURATED NEWS) WRITTEN by CAROLYN DAVIES for theguardian.com