Happy Birthday’s sad money grab

This is a major anniversary for the woman who composed Happy Birthday, but you can’t afford to sing it to her. June 27 marks the 150th birthday of Mildred Hill, who wrote a short song in 1893 with lyrics (originally “Good Morning To All”) by her younger sister Patty. Long after Mildred was dead, the song was registered with new birthday lyrics, and ever since then, the music publisher has collected a licence fee from any movie or TV show that uses Happy Birthday. When it’s sung in a restaurant, you may be hearing the sound of someone who owes money.

Nobody knows who wrote Happy Birthday to Mildred Hill’s tune, and it was sung that way for some time before anyone thought of charging for it. But ever since it was copyrighted in 1935, what sounds like a traditional song became a privately owned cash cow: the song was used in 10 movies in 2008 alone, and Warner Music Group, which now owns the rights, requires a licence fee of approximately $20,000 for singing even one of the song’s four lines. Producers sometimes save money by substituting public-domain songs like For He’s a Jolly Good Fellow in birthday scenes, or even creating original songs; the first home-video release of Leslie Nielsen’s show Police Squad! recorded over Happy Birthday with a song called Something Different. (When the DVD release restored the original version of the episode, some fans complained about the removal of Something Different.)

And yet the copyright status of this song may be a convention that everybody feels they need to observe even if there’s no clear reason for it—sort of like birthdays themselves. Robert Brauneis, a law professor at George Washington University, wrote a famous paper last year arguing that Happy Birthday shouldn’t be under copyright at all. Since the lyrics were written anonymously, and the Hills never renewed copyright on the music, the current owner can’t “trace its title back to the author” as copyright law requires; the Hills may have written Good Morning To All, but Happy Birthday has no clear author, and without one, there’s no copyright.

Brauneis told Maclean’s that the copyright remains unchallenged, in part because people believe a big corporation must know what it’s talking about: “People know that Warner Music Group, a large, reputable music publisher, and its predecessors have consistently collected royalties on the song, and assume that since users have paid the royalties, the song must be under copyright.”

Thanks to Brauneis’s paper, people are finally starting to question the ownership of Happy Birthday. But don’t expect anyone to make his arguments in front of a judge. He explains that producers find it cheaper to pay what Warner Music is asking than to fight them in court: “$20,000 may seem like a lot of money, but the legal costs of challenging copyright would be many times that figure, and one can never be completely certain of the outcome.” Which means that Warner could keep making money from a copyright claim that doesn’t actually make much sense. It’s a triumph of the legal system.

But there is an upside to the seemingly endless ownership of this song: it’s being used as the ultimate example of out-of-control copyright law. Anyone who wants to teach the public about the dangers of extending copyright indefinitely will bring up Happy Birthday. U.S. Supreme Court Justice Stephen Breyer even mentioned it in a dissent in a case in which the Court upheld long-term copyright renewals, warning that the decision might “justify yet further extension of the copyright on the song Happy Birthday to You.” Marjorie Heins, who runs the Free Expression Policy Project (which advocates against copyright restrictions), told Maclean’s that even laymen find something fishy about charging lots of money for a song that should belong to everyone: “The song is so widely used that the absurdity of demanding a licensing fee every time it is sung seems obvious.”

But if its ownership is ever allowed to lapse, not only will Warner Music lose money, anti-copyright warriors will lose their most reliable punching bag. Which means the only people who lose out are the movie and TV producers, who have to pay thousands of dollars for a tune that never made money for Mildred Hill. But they can take solace from the fact that, under North American copyright rules, the song will enter the public domain in 2030. That is, unless Warner Music finds some new way to extend the copyright. It worked in 1935, so why wouldn’t it work again?