Have you ever noticed in films and television shows how rare it
is for the characters to sing the entirety of the Happy Birthday
song in a scene? I hadn't until it was pointed out to me and
may not have realised because film and television makers have
clever ways of presenting birthday celebrations without the whole
version. Which seems odd, given that it is one of the, if not the
most, well-known songs in the English language.
The reason film and television makers avoid using the full song
is that until recently doing so would mean that they would have to
pay royalties to the purported owner of the copyright of the song,
Warner/Chappell Music. Despite the fact that anyone above the age
of 3 can pretty well bang out their own rendition, licensing it for
commercial use costs, in fact, it's estimated that the various
owners of the song have leveraged over US $50 million in royalties
since it was composed in 1912 by two Kentucky sisters.
This all seems to be changing now that a United States Court has
found that music publishing company Warner/Chappell Music, Inc.
does not own the copyright of the Happy Birthday song. This marks
the end of decades of Warner/Chappell claiming millions for
licensing the song for commercial use.
In September this year US District Court Judge King held that
Warner/Chappell's claim for copyright of the song was invalid.
The Happy Birthday song, as a musical work, has at least two
elements that can be the subject of copyright: the lyrics and
music. Additionally, the artist who performs the music owns the
copyright of a recording of a live performance, and the individual
or company who made the recording will own the copyright of a sound
Judge King found that Warner/Chappell never owned any rights to
the Happy Birthday lyrics, but did own the copyright of the melody
and various piano arrangements of the song. This means that despite
a multitude of articles in the media, the song is not entirely in
the public domain. The lyrics, on the other hand, might be.
The drama and confusion doesn't end there though as the
Association for Childhood Education International (ACEI) has
submitted that if Warner/Chappell Music doesn't own the
copyright, ACEI does. ACEI is the sole shareholder of the
foundation created by the Hill sisters, the purported writers of
the song's lyrics and melody. ACEI had been receiving one-third
of royalties received by Warner/Chappell due to a 1944 agreement.
Separately, Warner/Chappell has also requested that the court
reconsiders its decision or allow Warner/Chappell to appeal.
Given the commercial value of the four line song, we're
unlikely to arrive at a conclusive end to this saga anytime soon.
Regardless of whether or not the song's lyrics and/or melody
are protected by copyright, this case raises questions as to what
the purpose of copyright protection is, and what it should extend
If the objective of copyright law is to provide an incentive to
create and disseminate original materials, one may ask how
protecting the Happy Birthday song achieves this purpose given its
wide non-commercial use. The responsibilities of film and
television makers who wish to use the song in terms of obtaining
permission are unclear while the copyright status of the song's
melody and lyrics are in legal limbo. Until then, maybe the best
approach is to find ways to avoid the copyright issue all together
– maybe a character will interrupt the singing, or a birthday
scene will open with a party singing the end of the song,
"...to you". Maybe in the end, that's how copyright
laws protecting the Happy Birthday song are encouraging
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