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
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
While the Happy Birthday song may be simple, its
history is not. It all started at some time before 1893, when
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
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
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
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