Add this to the list of common misconceptions about misconceptions: “Happy Birthday to You” is probably not under copyright, as often asserted for emotional response. You hear that, chain restaurants who make employees sing birthday songs nobody likes?
It’s a free download, but lengthy (I skimmed over some of the drier parts). The author has exhaustively analyzed the song’s copyright status, coming to the conclusion that there are multiple weaknesses in the current owner’s claim. Takeaways from the last section:
The “Happy Birthday to You” anecdote that eventually landed in Justice Breyer’s Eldred v. Ashcroft dissent has principally been an anecdote about the excessiveness of copyright protection—an excessiveness that made it possible to protect what is essentially a folk song, somewhat modified by two kindergarten-teacher-amateurs, for over a century. The true story of the song challenges many of the assumptions on which that anecdote relies. “Good Morning to All” was not a slightly modified folk song, but an original composition on which Mildred and Patty Hill spent a great deal of effort. If, indeed, Mildred and Patty combined the “Good Morning to All” melody with the “Happy Birthday to You” lyrics around the same time the former was published in 1893, but did not authorize publication of that combination until 1935, and did not take any action against widespread unauthorized use of the song until then, then the case of “Happy Birthday to You” is an extraordinarily unusual one. Arguably, such a delay occurs so rarely that the lack of a doctrine to deal with it under the 1909 Copyright Act does not represent a major failure of copyright policy. In any event, the 1976 Act makes such a problem even less likely to occur due to its drastically reduced reliance on “publication” as a triggering event. In addition, however, there are serious questions about whether a court would find “Happy Birthday to You” to still be under copyright, due to difficulties with proving authorship of the song, with potentially improper copyright notice upon first publication, and with renewal applications that seem only to cover particular arrangements of the song rather than the song itself.
And from a footnote asking why nobody has challenged the claim:
The weaknesses in the registration and renewal of the GMTA/HBTY combination provide a good reason why Summy-Birchard has not and would not be likely to sue for infringement itself. Any suit that it filed would be susceptible to a very early motion to dismiss based on the lack of any registration for the song (assuming that the defendant was not infringing one of the specific arrangements that have been registered, which is quite unlikely). See 17 U.S.C. §411(a) (requiring registration as a precondition of bringing an infringement action). That motion could be decided without much discovery; if it were decided adversely to Summy-Birchard, the song would be in the public domain due to the defective renewal, and the entire stream of income from the song would dry up—a very big risk to take just to enforce against one infringer. That should give some comfort at least to small-scale infringers that Summy-Birchard is unlikely to pursue them in court. Motion pictures and other large projects, however, can almost never be financed without insurance against infringement claims, and insurers are unlikely to be satisfied with an assertion that a work is almost certainly in the public domain, or that the copyright owner almost certainly will not sue. Thus, a detailed exposition of weaknesses in the copyright of “Happy Birthday to You,” such as that found in this article, is unlikely to make much of a dent in the song’s income.
The song makes about $5000/day for Warner/Chappell Music, whose (unchallenged) claim will expire in 2030.
