United States: Happy Birthday To Me: An Iconic Song Enters The Public Domain After Copyright Settlement

Last Updated: October 18 2016
Article by Julia Huston

As I turn 50 years old this week, I can't help but think of the famous Happy Birthday song and the class action that resulted in its entering the public domain earlier this year. The class action plaintiffs in that case filed a declaratory judgment action in the Central District of California against two music companies that had been enforcing the copyright in Happy Birthday and requiring the payment of royalties in some circumstances where it had been used commercially, such as in movies or television shows.

After some initial skirmishing, Judge George King ruled that the copyright in the lyrics, to the extent it remained valid, did not pass to the music companies' predecessors in interest. Thereafter, the parties reached a settlement resulting in a judicial declaration that Happy Birthday is in the public domain and establishing a $14 million fund to reimburse class members who had previously paid royalties to use Happy Birthday. Judge King approved the settlement on June 20, 2016 and, in August 2016, awarded the plaintiffs' counsel over $4 million in attorneys' fees.

While the Happy Birthday song may be simple, its history is not. It all started at some time before 1893, when sisters Mildred and Patty Hill composed a song called Good Morning To All:

Good morning to you

Good morning to you

Good morning dear children

Good morning to all.

No one seems to know when or how that song became the one we all know and love:

Happy birthday to you

Happy birthday to you

Happy birthday, dear [NAME]

Happy birthday to you.

The first reference to the Happy Birthday lyrics in print appeared in a 1901 article in the Inland Educator and Indiana School Journal, which stated:

"A birthday among the little people is always a special occasion. The one who is celebrating is decorated with a bright flower or badge and stands in the center of the circle while the children sing 'Happy birthday to you.'"

The complete lyrics did not appear in the article, however, and a 1909 prayer songbook similarly referred to the Happy Birthday song but did not include the lyrics. Publication of the complete Happy Birthday lyrics first occurred in a 1911 book titled The Elementary Worker and His Work. Unfortunately, that book did not credit anyone with authorship of the lyrics, and only mentioned that Happy Birthday and Good Morning to All shared the same tune, and that Good Morning to All had been published in a previous book. A copyright registration for The Elementary Worker and His Work issued in 1911.

As described in Judge King's summary judgment opinion, a complicated history ensued, with multiple copyright registrations, assignments, and lawsuits involved. Once Judge King determined that any remaining copyright in the lyrics to Happy Birthday did not pass to the defendants, the writing was presumably on the wall, and the parties settled on the basis that the entire work – lyrics and melody – was in the public domain.

Given that Happy Birthday is now in the public domain, anyone can create derivative works, such as:

Happy birthday to me

Happy birthday to me

I made it to fifty

Happy birthday to me.

I am sure you could do better, but you get the idea. Even if Happy Birthday was still subject to copyright protection, which it is not, I could rely on the fair use doctrine to create a parody such as this one:

Happy birthday to me?

What makes it happy?

A vapid song sung off-key,

Anywhere I'd rather be.

Parody pokes fun at the work itself (or some aspect of the work) and therefore falls within the statutory definition of fair use. This is different than satire, in which the allegedly copyrighted work is used as a vehicle to carry some other message. Here is an example of satire, which would most likely not constitute fair use if sung to the tune of Happy Birthday:

How could you not vote?

Are you without hope?

It's key to our democracy,

So don't be a dope.

Okay, I won't be quitting my day job as a trademark and copyright lawyer to become a songwriter any time soon. Luckily, my clients bring that talent to the table. Speaking of which, time for some cake!

To view Foley Hoag's Trademark and Copyright Law Blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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