Filmmaker challenging Happy Birthday copyright that requires payment for its use

A filmmaker is taking the “Happy Birthday” song to court to prove once and for all that it should be free to all.

Most everyone knows the “Happy Birthday” song. You can hear the tune in your head right now. But those lyrics that begin “Happy Birthday to you, Happy Birthday to you,” weren’t the original words to that tune. It actually began as a well-known song called, “Good Morning to All.”

“It was composed in the early 1890s as a kindergarten greeting song by two sisters in Louisville, Kentucky. The original words were “Good Morning to All.” It was going to be sung by kindergarten students to their teacher and perhaps by the teacher back to the students as well,” says Robert Brauneis, the song’s biographer and an intellectual property professor.

As the professor says, that song has clearly been in the public domain for over 60 years. But somewhere along the way, the words Happy Birthday became attached to the music.

But Brauneis says the copyright for the “Happy Birthday” song only covers particular arrangements of the song, not the song itself.

“My conclusion is that the song is in the public domain. The copyright owners at the time failed to file a renewal registration that was required and I think they did so not because they just made an unfortunate mistake, but because they didn’t really think that the song itself was under copyright and they filed renewal for piano arrangements.”

Brauneis says there’s also no real evidence the original “Good Morning to All” songwriters even wrote the “Happy Birthday” words. If that can’t be proven, then the owners of the copyright today – the Warner Music Group – are on even shakier legal ground.

Why is this such a big deal? It turns out Warner’s been collecting about $2 million in royalties each year, since it bought the rights in 1988. Every time that song is sung in public – whether in movies or in commercials, on TV or in concerts, the performers have to pay up.

The filmmaker who’s filed the suit, Jennifer Nelson, had to cough up $1,500 to use it in her documentary, a film about the “Happy Birthday” song.

Brauneis says she’s on solid legal ground, but he’s still surprised she’s willing to go to all that trouble.

“The problem is that even if certain works are in the public domain, as long as every user of the work is only paying a small amount, practically speaking, no one would challenge it,” Brauneis says. “I’m somewhat surprised to tell you the truth that Jennifer Nelson and her company has gone ahead with the challenge, because it’s only $1,500. That’s not going to get you anywhere with lawyers needed to challenge the copyright and the song.”

Filmmaker Nelson hopes to turn it into a class action suit, which would help defray the costs of going to trial.