Ask Dr. Copyright

copyright question

Dear Doc:


Some time ago, I wrote to you about the song “Happy Birthday” and the law suit over whether restaurants and film makers must still pay royalties if they sing it in public. Has anything new happened?

Signed, 

Happy Birthdad

Dear Hap (can I still call you that?)…

Funny you should ask! That law suit is now about two years in, and just this week, and right about as federal District Judge George King (before whom the Doc has a case pending – full disclosure) was about to hold a hearing about whether Patty Hill (who wrote the words, but not the music) abandoned her copyright in the lyrics, the plaintiffs filed a motion containing some documents that they got from the copyright owners, Warner/Chappell Music in discovery (a year late, they say, after the court deadline, but hey, better late than never…)  In brief (get it?), the motion claims that the newly produced documents prove that the words to the song are in the public domain, and have been for a long time.

In 1927, the Cable Company produced the 15th edition of a children’s song book called “The Everyday Song Book”. It included “Birthday Song,” which was sung to a melody for “Good Morning To You,” a song dating back to the 19th century, combined with Patty Hill’s lyrics for “Happy Birthday.” That song appeared in editions dating back to 1922, which, the motion says, “proves conclusively” that “Happy Birthday” entered the public domain no later than 1922. The song was printed without a copyright notice unlike other songs in the book. The lack of any copyright notice is critical, because under the 1909 Copyright Act which was then the law, a published work had to include the word “Copyright,” the abbreviation “Copr., ” or the “©” symbol, or, the motion says, “the published work was interjected irrevocably into the public domain.”

So, you may ask, what does this mean for every mid-market restaurant that sings bogus “Happy Birthday” songs? Nothing yet, but maybe, some day soon, they, and the rest of us, may be able to sing “Happy Birthday to You”, free of the copyright royalties that have been collected since 1922 by big, bad music publishers. More importantly, some day soon, a bunch of lawyers may collect a gigantic legal fee, while everyone who’s ever paid for the right to sing “Happy Birthday” will likely get, as the Doc’s grandmother used to say, “bupkis”.
Have an urge to break into song in public? Better speak to the attorneys at LW&H first, before you get in really big trouble. Until then, keep on singing (but only in the shower, and only if members of the public are not in that shower with you!)

The Doc

— Lawrence Husick, Esq.