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Exposing the Happy Birthday story

By J Byron in Op-Ed
Sat Jul 05, 2003 at 04:37:20 PM EST
Tags: Music (all tags)
Music

Exposing the Happy Birthday story:
An editorial by J. Byron, May 2003, rev. June 2003

In this article, I attempt to answer three questions: 1 - What is that song Good Morning to All, and how does it relate to Happy Birthday to You? 2 - Is the melody to Happy Birthday to You public domain? 3 - Are the lyrics to Happy Birthday to You also public domain? There are many references to Happy Birthday on the Web. Most warn you of the copyright claim on it, and that the current owners rabidly defend it. Many of these "editorials" do not tell you about the song Good Morning to All - and the few that do, don't tell you about its undeniable legal status. Is this deliberate, or just ignorance of the facts? I don't know. Two such examples are an article at Attaché Magazine and the commonly cited article at snopes.com. In addition, some articles may unintentionally present inaccurate information. An article posted at lawyers.com incorrectly states that Good Morning to All was written in 1895 but unpublished. That assertion is untrue, and makes an important legal difference.


There is a 1935 copyright registration for Happy Birthday, but the melody Good Morning to All was formally published in 1893 as part of a collection, registered in October 1893, and is public domain by U. S. statute. (you just can't use the "Happy Birthday" lyrics in public without paying) However, one site listed in this editorial claims possession of some early publications that nullify the copyright to even the lyrics.

Good Morning to All [a.k.a. the birthday melody] included in:
Song Stories for the Kindergarten, pub. 1893
Song Stories for the Kindergarten, revised ed., pub. 1896
[and apparently other pre-1923 editions]
Words: Patty Hill (-1946) Music: Mildred Hill (-1916)

Good morning to you,
Good morning to you,
Good morning, dear children,
Good morning to all.


The song Good Morning to All - from which Happy Birthday was allegedly derived - is free to use (words and music) by U. S. federal statute. (Published before 1923, and furthermore published before 1909) Take a look at Lolly Gasaway's PD chart, or Cornell University's expanded chart. That version of the birthday melody may suffice for some people - instrumentalists in particular. Also note that titles cannot be protected by copyright, and no unique or proper names are involved. Naming an instrumental CD track Good Morning to All a.k.a. Happy Birthday to You should be legal. (The law of other countries might affect the song's status outside the U. S.)

Allegedly, after the publication of Good Morning to All in the Hill's songbook Song Stories for the Kindergarten, Robert Coleman, and others, published the "birthday" lyrics with the Good Morning to All melody. In the 1930's, the "Happy Birthday" lyrics combined with the Hill's published melody showed up on stage and in singing telegrams. The Hill family allegedly won a 1934 lawsuit for infringement. In 1935 the Hill family registered the "Happy Birthday" copyright mentioned endlessly on the Web. (Which does not affect today's public domain status of Good Morning to All.) Two sources for Good Morning to All sheet music are PD Info (a small studio, that also sells sheet music reprints) and NetStoreUSA which offers Good Morning to All as part of a songbook. In addition, Google or Altavista might list other sources, or local music dealers might be able to order a copy. Mainely A Cappella currently boasts an mp3 sample of Good Morning to All as part of their On the Good Ship Lollipop CD. (There is also a very simple midi example on PD Info's "G" page.)

Is the melody to Good Morning to All the same as the Happy Birthday melody in a legal sense? Except for the splitting of the first note in the melody Good Morning to All to accommodate the two syllables in the word hap-py, musically Happy Birthday and Good Morning to All are identical. Precedence (regarding works derived from public domain material, and cases comparing two similar musical works) seems to suggest that the melody as used in "Happy Birthday" would not merit additional legal protection for one split note. (As separated from the lyrics themselves.) A contact I made via the Web, claimed that someone at Warner-Chappell acknowledged this much to him by phone. It would be the reader's own responsibility to verify that.

Strip away the public domain material from the Happy Birthday melody and what do you have? One note - actually half a note. (Mail in your copyright registration for the note f# for example, and see what you get back ;-) Does the split note transform the piece in some substantially creative way? Not in my view. The split note is a natural consequence of the lyric change, and that split note is not original in that there are many lyrics that would result in the same splits. It is my view that you cannot copyright the metric structure of a lyric (especially within a single measure) anymore than you can copyright a common chord progression. (Set both versions of the melody in tremelo and they look identical.) If in doubt, just use a dotted eighth note/sixteenth note pair, rather than two eighth notes. The Classical Archives has a midi of Happy Birthday, with variations, on their Encores page. Search for more midi examples using MusicRobot.

As asserted in this article, many people are unaware that the public domain status in the U. S. of the melody from Good Morning to All is not in question. Many of those who do know about the public domain status of Good Morning to All nevertheless believe that splitting the first note of the melody as was done for Happy Birthday would merit protection and attract Warner's attention. My limited understanding of the law suggests otherwise, and if my Web contact was correct, the copyright owner acknowledges the melody to Happy Birthday as public domain.

Whether or not changing the words "Good Morning" to "Happy Birthday" should be protected by copyright is a different matter. Although I could be uninformed, I do not know of any case brought by Warner in regard to Happy Birthday to You. They have however used cease and desist letters. An interesting case involving Warner, not related to Happy Birthday is Sanga Music v. EMI Blackwood Music. However, adding an original 8-line verse to a pre-existing song is more substantial than changing 2 words of a song! Of course, anyone is free to write their own lyrics to the music of Good Morning to All. Here is one example written by myself:

Mer-ry Christ-mas to You!
Mer-ry Christ-mas to You!
Mer-ry Christ-mas Dear Fri-ends,
Mer-ry Christ-mas to All.


Searching further, I found Katzmarek Publishing, a music publisher specializing in public domain music who claims that he and others have publications of "Happy Birthday" - with the lyrics, that are not covered by the 1935 copyright. (Of course there is no public comment by Warner on this.) Mr. Katzmarek told me via email that he believes Warner knows that their copyright on Happy Birthday to You could get ruled invalid in a court of law, and therefore the documentation he sells acts as sort of a legal shield.

He states on his Web page: "Happy Birthday Document (proving that it is public domain.) A 1935 copyright is invalid according to us, double your money back if we are wrong. (Many people have been ripped off by this dilemma)"

The Katzmarek reprints indicate that the words "Good Morning" were not substituted with the words "Happy Birthday" by the authors of Good Morning to All, they were substituted by other people. (Additional alternative substitutions were also published.) As I previously stated, except for the splitting of the first note in the melody Good Morning to All to accommodate the two syllables in the word hap-py, musically Happy Birthday and Good Morning to All are identical.

Starting in the 1920's, Robert Coleman published the "Happy Birthday" variant in compilations of his own. One such example that includes Happy Birthday to You is: The American Hymnal, Robert H. Coleman, 1933. A second example NOT by Coleman is: Children's Praise and Worship, Gospel Trumpet Company, 1928. [Children's Praise And Worship ed Andrew Byers, Bessie L Byrum & Anna E Koglin, registered 7Apr28, #A1068883, renewed 7Dec55, #R160405, Gospel Trumpet Co (PWH)] Several of Coleman's publications are archived at Bob Jones University and Southwestern Baptist. In addition, the Library of Congress might also have his publications archived.

It is Mr. Katzmarek's belief that because the "Happy Birthday" variant was published in these songbooks without copyright notice (and no author was stated) that it [any original authorship] became public domain upon publication under the 1909 copyright law. The 1909 Copyright Act required that a proper copyright notice be affixed to any published copies, and also required registration of the material. (Reportedly, some legal experts and producers agree, but Warner [the copyright holder] apparently disagrees.) It is curious that Warner doesn't challenge Katzmarek regarding his claims. A more recent case often cited is Bell v. Combined Registry Co., 536 F.2d 164 (7th Cir. 5/14/1976), cert. denied 429 U.S. 1001, 97 S.Ct. 530, 50 L.Ed.2d. 612 (December 6, 1976) although it deals with different issues than presented in the Happy Birthday situation.

An interesting earlier songbook noted by Mr. Katzmarek is: [the] Golden Book of Favorite Songs, Chicago, 1915. It includes the song Good Morning to All printed with the alternate title: "Happy Birthday to You" - however the "Happy Birthday" lyrics are not actually printed along the staff. (There could be even earlier publications of the lyrics in some library.)

In the 1930's, the "Happy Birthday" lyrics combined with the Hill's published melody showed up on stage and in singing telegrams. The Hill family allegedly won the 1934 lawsuit resulting in the 1935 copyright mentioned endlessly on the Web: "Happy Birthday to You was copyrighted in 1935 and renewed in 1963. The song was apparently written in 1893, but first copyrighted in 1935 after a lawsuit (reported in the New York Times of August 15, 1934, p.19 col. 6)" The federal statutes and one court's 1934 opinion seem to present a conflict in determining whether or not Happy Birthday to You is public domain:

The original music to Happy Birthday to You was published as Good Morning to All in 1893 and is securely public domain. The Hill sisters are credited with authoring Good Morning to All. However, according to The Book of World Famous Music by James Fuld, the 1858 song Happy Greetings to All is very similar to the Hill's song. Also in 1858, a similar tune Good Night to You All was published. Therefore, Good Morning to All might not have been a completely original song even in 1893 - which would be consistent with folk music. Other [unknown] people adapted the Happy Birthday lyrics to the song, a few publishers included it in their compilations (songbooks) and others started using it in plays and singing telegrams, while Good Morning to All was still under copyright protection. The song became popular. The Hill family sued for infringement and won. The next year, a copyright registration was filed for the Happy Birthday version of the song. That copyright is now owned by Warner-Chappell/Summy-Birchard. However, just because a copyright is registered doesn't mean it's valid. A copyright registration is only prima facia evidence. Just because someone threatens to sue doesn't mean they would win. One lower court's 1934 ruling couldn't be binding on the whole country, much less the world.

Under the U. S. law of 1909, the effective date of copyright is the date of first publication. The U. S. Copyright Office states: "The copyright in the work of authorship immediately becomes the property of the author who created the work. [The Hills did not create the Happy Birthday to You version.] Only the author or those deriving their rights through the author can rightfully claim copyright." There is proof that the song was published as Happy Birthday to You at least by 1915, which is prior to the public domain mark at 1923. Good Morning to All was not public domain in 1915, but it is now. Also, according to the 1909 Copyright Act, publication without notice forfeited the copyright for the publications in the 1920's. A copyright registration dated 20 years after publication is not valid under the 1909 Copyright Act. That would seem to indicate that the whole song is now in the public domain.

In summary and in answer to my three questions asked in this article, Good Morning to All is public domain and free to use, even for commercial use. The Happy Birthday to You melody is probably the same as the Good Morning to All melody in a legal sense. Happy Birthday to You (with the lyrics) might be public domain.

My own comments do not constitute legal advice in any way. I am not a lawyer. This is the result of my own personal study. I accept no liability resulting from the use or misuse of my article. This is not an endorsement of any link(s) in this editorial. For more information on what material is public domain in the United States, refer to Lolly Gasaway's PD chart. Read the copyright basics at the U. S. Copyright Office's Website, and freely access recent case law at Findlaw.com. The Nolo book The Public Domain is an informative resource, written by an attorney. Before using any tune commercially, it is best to check with a lawyer, or research group such as Public Domain Report or Music Reports, which may or may not agree with the opinions in this article.

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Poll
Should Happy Birthday be public domain?
o Yes 91%
o No 8%

Votes: 68
Results | Other Polls

Related Links
o Google
o Attaché Magazine
o snopes.com
o lawyers.co m
o Lolly Gasaway's PD chart
o expanded chart
o PD Info
o NetStoreUSA
o Google [2]
o Altavista
o Mainely A Cappella
o Warner-Cha ppell
o Encores
o MusicRobot
o Sanga Music v. EMI Blackwood Music
o Katzmarek Publishing
o Bob Jones University
o Southwestern Baptist
o Library of Congress
o Bell v. Combined Registry Co., 536 F.2d 164 (7th Cir. 5/14/1976)
o copyright basics
o Findlaw.co m
o The Public Domain
o Public Domain Report
o Music Reports
o Also by J Byron


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Exposing the Happy Birthday story | 23 comments (18 topical, 5 editorial, 0 hidden)
I like (5.00 / 2) (#5)
by zephc on Sat Jul 05, 2003 at 01:04:42 PM EST

The "New Birthday Song" by Jack Black, shown on SNL, i could only find a few links to lyrics, try here

try the snl archive (none / 0) (#16)
by puppet10 on Sun Jul 06, 2003 at 04:34:50 PM EST

Skit transcript

[ Parent ]
I didn't care to read it all... (5.00 / 3) (#6)
by laotic on Sat Jul 05, 2003 at 01:12:05 PM EST

...waiting just for the final summary, i.e. whether many of us have been owing many dollars in royalties for singing HBTY to our friends or not, but I think it's fair to at least +1 section it since, as pyramid termite already remarked, the story is one of the miraculously scarce pieces on K5 when the author is not spamming around his deeply held and unsubstantiated conviction, and actually did some researching work for us lazy bastards who don't often care to click through on a link.
For that, thanks.

Sig? Sigh.
Summary (5.00 / 1) (#7)
by damiam on Sat Jul 05, 2003 at 07:09:13 PM EST

The melody to Happy Birthday is public domain. The words might be. Anyway, it's irrelevent if all you want is to sing it at a birthday.

[ Parent ]
I gathered that much... (none / 0) (#12)
by laotic on Sun Jul 06, 2003 at 09:43:00 AM EST

i.e. - that both are probably PD, but why would it be irrelevant if I performed it at a party? It is a public performance anyway, isn't it?

I may have overlooked whether royalties only are paid if you make profit or if the author could make a profit, but please don't explain, I give little damn about copyright generally anyway.
:)

Sig? Sigh.
[ Parent ]
Yep (none / 0) (#13)
by damiam on Sun Jul 06, 2003 at 10:01:15 AM EST

The point is that no one gives a damn about it, and even if you technically should pay (which I doubt), no one's gonna enforce it.

[ Parent ]
The reason why it shouldn't be PD (3.00 / 1) (#8)
by PigleT on Sun Jul 06, 2003 at 03:47:26 AM EST

By the time you've heard HBTY blared out twice in a restaurant in the same evening, you're not likely to be singing along sincerely!

...had a funny one yesterday, though. The restaurant obviously had a standard version with `happy birthday dear [semibreve rest]' in the penultimate line... and nobody was singing along so there was a great embarassing pause for the poor victim's name ;)
~Tim -- We stood in the moonlight and the river flowed

I agree (5.00 / 1) (#15)
by J Byron on Sun Jul 06, 2003 at 01:30:33 PM EST

I agree, but I believe you might be confusing "sung in public" with "public domain." ;-)

[ Parent ]
Anagram of the acronym (none / 0) (#18)
by unDees on Mon Jul 07, 2003 at 12:04:37 PM EST

I'd never thought about the initial letters of Happy Birthday To You until I read your post, but now I notice that they can be rearranged to form a comment that would be quite appropriate coming from the legal-threat-happy "copyright holder:"

HBTY!  YHBT!


Your account balance is $0.02; to continue receiving our quality opinions, please remit payment as soon as possible.
[ Parent ]

no offence but .. (1.00 / 4) (#9)
by cypherpunks on Sun Jul 06, 2003 at 04:05:59 AM EST

How did this unedited tripe make FP? Interesting topic and well researched but do you even read your own work? Case in point: the below two sentences are repeated verbatim a paragraph and a half apart.
In the 1930's, the "Happy Birthday" lyrics combined with the Hill's published melody showed up on stage and in singing telegrams. The Hill family allegedly won the 1934 lawsuit resulting in the 1935 copyright mentioned endlessly on the Web
given the effort it takes to read the piece I guess it's not really surprising no-one has commented on this yet. and it probably deserves mention that the why do I care? factor kicks in here .. maybe I'm ignorant but I had to infer the fact that there is a copyright issue on That Song from the first paragraph. The closest things to relevance to me (or probably the rest of the audience on k5) is an indirect reference to the effects on musicians publishing the tune. BTW - it is mentioned in a comment below that Anyway, it's irrelevent if all you want is to sing it at a birthday. Anybody care to elaborate on exactly why this is? BTW you mention in response to a comment below that the copyright has no relevance

why irrelevant? (4.00 / 1) (#11)
by joto on Sun Jul 06, 2003 at 06:57:22 AM EST

Anyway, it's irrelevent if all you want is to sing it at a birthday. Anybody care to elaborate on exactly why this is?
Because singing it at a birthday is not a public performance. Neither do you care about copyright issues when playing popular music at friday-night parties in your own home, or when you are singing to yourself in the shower.

There are of course complications to this: Is it legal to sing "Happy Birthday" to your kid without paying royalties, if he is having his birthday at McDonalds? Is it legal to hum or whistle a copyrighted melody while taking a walk in the park? (I think I would be willing to take those risks myself, but who knows?)

[ Parent ]

Editing (4.00 / 1) (#14)
by J Byron on Sun Jul 06, 2003 at 01:26:32 PM EST

Sentences repeated? Yes. Both sentences repeated verbatim? No. Repeated a paragraph and a half apart? No. Repetition can be an effective literary device. Anyway, thanks for reading that far. Why should the K5 audience care? Fair question. Maybe I should answer your question with a question: "How many K5 readers have never sung this tune?" However, I do accept any responsibility for writing primarily for musicians and lawyers, rather than a more general audience. I didn't really want to rehash the background already provided by the writers of the material linked to in my first paragraph.

[ Parent ]
Why should we care? (none / 0) (#17)
by pyramid termite on Sun Jul 06, 2003 at 11:09:42 PM EST

Tell me - is what the Hill sisters did any different than what SCO's trying to do with the Linux kernel? Is it different than the many "stealth patents" that many obscure patent holders have used to sue big companies for alleged violation? The mechanism is the same - take an obvious and public idea that no one's copyrighted or patented, wait until somebody makes a bunch of money, and sue them for it. Except, of course, the Hill sisters jumped on it a lot faster and the business they sucked the money out of was a bit less sophisticated about their rights in the situation.

On the Internet, anyone can accuse you of being a dog.
If you rearrange the letters (5.00 / 2) (#19)
by Relinquished on Mon Jul 07, 2003 at 12:59:59 PM EST

In "So, isn't there a means around this damn use of niggardliness?"
you get "Here's a smart idea, man. Don't arouse fuss - don't sing in English."

--------------
If you rearrange the letters in "anagram for signature" you get "famous at rearranging".


WTF (none / 0) (#20)
by Mantle on Wed Jul 09, 2003 at 05:01:01 AM EST

How did you create this complex yet relevant anagram?

[ Parent ]
amazing! (none / 0) (#21)
by Jafafa Hots on Thu Jul 10, 2003 at 04:39:28 AM EST

How did you come up with that?

[ Parent ]
Funny... (none / 0) (#22)
by fluxrad on Fri Jul 11, 2003 at 06:03:42 PM EST

I think it should stay copyrighted to make goddamned hypocrites out of all those who berate me for downloading copyrighted music...because piracy is wrong dontcha-know

It's always nice to crack a secret smile when my friends who think you should have to pay $20 for an album are happily singing the tune to the birthday boy/girl. "Oh, so piracy is only ok when you choose to do it!".

--
"It is seldom liberty of any kind that is lost all at once."
-David Hume
Postscript for "Exposing Happy Birthday" (none / 0) (#23)
by J Byron on Tue Dec 02, 2003 at 05:15:14 PM EST

Whether or not Happy Birthday to You is public domain, the original song Good Morning to All is without question public domain. (It even was when Stravinsky wrote his version.) Even if the Hill's themselves had written, published, and registered the happy birthday version in 1935, that does not affect the public domain status of the earlier authorized version of Good Morning to All. Anyone else can write their own version based upon Good Morning to All. Good Morning to All is public domain no matter what setting you play it in, and just that fact is news to many people.

Common Law copyright: Good Morning to All (which comprises the majority of the song Happy Birthday to You) was published with consent of the author, and since the Hill's or Mr. Summy DID NOT pen the words "Happy Birthday to You" there is nothing for common law to protect regarding them.

If the added authorship by the anonymous person who wrote the Happy Birthday version is not considered to have been published in 1915 or in the '20's, and Mr. Summy published his version based upon knowing that version, then he has infringed upon the anonymous person's common law copyright also.

The lyrics "Happy Birthday to You" were published prior to use of them on stage and in telegrams. (Which would not have been publication.) Mr. Summy would have a valid copyright if he had taken the anonymous lyrics and put them to the tune himself. He did not; he took previously published material (albeit from an infringing combination of material) and registered it.

Scenario: If there had been anonymous lyrics published in a 1915 book that were completely different from Good Morning to All's lyric's in all respects except the meter, and at the top of the page, is printed "sing to the music of Good Morning to All" that would not be an infringement as none of Good Morning to All was republished. Mr. Summy could not take that as his own, even if judged to be public domain. The only difference in that scenario and this situation is that the Hill's original song was republished as a result of the combination. The Hill's had the right to determine first publication of THEIR material - what someone else authored, whether it infringed on the original or not, does not become the property of the Hill's. The 1909 law or current law doesn't say that.

That would mean if someone created a parody of a song, like "Wierd Al" does, and did it without permission, that the original song owner would by default own the parody too, even where such added material is substantially greater than the original song. Of course, if published, the original owner could stop further publication, have Al's CD's impounded, and collect damages. As far as I know, acquisition of rights to any new material in the infringing published variation is not a remedy.

The Hill's or Mr. Summy could have taken public domain or anonymous lyrics and added them themselves, but they did not. The changed words NOR the idea to combine them with the original melody were authorship by the Hill's, thus able to be registered. Whether the new material was two words as it was, or an entire public domain encyclopedia, the Hill's cannot claim ownership of what they did not author: the two words, or the idea to combine them. (You cannot copyright public domain material whether two words or an encyclopedia.) The Hill's could not copyright the combination (whether infringing or not) as they did not first combine the words and publish it.

The main point is that Happy Birthday to You was not *original* to the Hill's or Mr. Summy in 1935. That is an important principle of any copyright law. And even if the court had the authority to grants the [EXCLUSIVE] rights to an unoriginal bit of authorship to Mr. Summy, the earliest publication I know of was 1915. Current statutes imply that both Good Morning to All and the added material published in 1915, would now be public domain.

I'm not even sure that the court even knew of earlier publications that were similar to Good Morning to All: Happy Greetings to All, 1858, Good Night to You All, 1858, A Happy New Year to All, 1875, Happy Greeting to All, 1885. Notice a pattern here? i.e. folk song. There may be even more previous versions that could be located, I don't know.

According to an article reprinted by Katzmarek, Ronald H. Gertz, Esq., apparently President and Founder of Music Reports, questioned the validity of the copyright as cited in that article. Anyway, it is not my job to argue this case. IANAL. I'm only reporting my understanding of the situation. It would be up to an interested lawyer to develop an argument supported by any case law that would bear upon the 1909 Copyright Act, the 1934 case, and any recent law or uncovered facts that would affect it.


Exposing the Happy Birthday story | 23 comments (18 topical, 5 editorial, 0 hidden)
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