"Happy Birthday"

[Starrmark]

Now that IMSLP has published the Happy Birthday song under its original title and with its original lyrics (Good morning to you,) I am curious: what is the real US copyright status of "Happy Birthday"?

The article in Wikipedia is in doubt:

"Happy Birthday to You", also known more simply as "Happy Birthday", is a song that is traditionally sung to celebrate the anniversary of a person's birth. According to the 1998 Guinness Book of World Records, "Happy Birthday to You" is the most recognized song in the English language, followed by "For He's a Jolly Good Fellow" and "Auld Lang Syne".[1] The song's base lyrics have been translated into at least 18 languages.[2], p. 17

The melody of "Happy Birthday to You" comes from the song "Good Morning to All", which was written and composed by American siblings Patty Hill and Mildred J. Hill in 1893.[3] Patty was a kindergarten principal in Louisville, Kentucky, developing various teaching methods at what is now the Little Loomhouse;[4] Mildred was a pianist and composer.[2], p. 7 The sisters created "Good Morning to All" as a song that would be easy to be sung by young children.[2], p. 14 The combination of melody and lyrics in "Happy Birthday to You" first appeared in print in 1912, and probably existed even earlier.[2], pp. 31–32 None of these early appearances included credits or copyright notices. The Summy Company registered for copyright in 1935, crediting authors Preston Ware Orem and Mrs. R.R. Forman. In 1990, Warner Chappell purchased the company owning the copyright for U.S. $15 million, with the value of "Happy Birthday" estimated at U.S. $5 million.[5] Based on the 1935 copyright registration, Warner claims that U.S. copyright will not expire until 2030, and that unauthorized public performances of the song are technically illegal unless royalties are paid to it. In one specific instance in February 2010, these royalties were said[6] to amount to $700.

In European Union countries the copyright in the song will expire December 31, 2016.[7]

The actual U.S. copyright status of "Happy Birthday to You" began to draw more attention with the passage of the Copyright Term Extension Act in 1998. When the U.S. Supreme Court upheld the Act in Eldred v. Ashcroft in 2003, Associate Justice Stephen Breyer specifically mentioned "Happy Birthday to You" in his dissenting opinion.[8] An American law professor who heavily researched the song has expressed strong doubts that it is still under copyright.[2]

If the melody and the Happy Birthday lyrics first appeared in print in 1912, why isn't it now PD? The fact that the early appearances in print did not include credits or copyright notices should be considered additional evidence that the work is now PD. The 1935 copyright is ex post facto. If a work was first published without a copyright notice before 1923, it is now PD -- n'est-ce pas?

A few years ago, a US opera company celebrated its 25th anniversary, and the audience was invited to sing Happy Birthday. However, the members of the orchestra were given strict instructions by the administration to play only a dominant seventh chord as an introduction, but not to play any part of the song. Otherwise, the administration warned, the opera company would have to pay big performance rights on the song.



MS

[pml]

The EU date seems to be based on a 70 year post mortem auctoris term for Patty Hill as librettist of "Good morning to all" (at present the two IMSLP files representing that version are marked V or !N instead of V/V/17 or !N/!N/17).

The third file on the workpage purports to be a re-typeset of the 1935 version. From a reading of your post above it seems the copyright was lodged in the names of two new authors Orem and Forman (who are these people and what did they do to merit it?). Again the copyright status of the IMSLP file seems odd, unless the modified lyrics retain the same copyright term in the EU (if Patty Hill is the author, despite the claim for Orem and Forman).

I suspect the US infringement relates strictly to the combination of music and text - and if they were published together in 1912 then the 1935 registration looks like it might be copyfraud, albeit one that it would be very unwise to challenge.

Regards PML

[Carolus]

Patty Smith Hill has been credited as the author of the text for both versions of the ditty (1893 and 1935) - though it's extremely questionable that she was actually the author of the "Happy Birthday" text. I have modified our tags for these in accordance with our current practice: the original version, which is public domain in its country of origin (the USA) would fall under the Rule of the Shorter Term in at least some EU and 70pma countries - is tagged V/V/C. Orem and Forman were listed as arrangers in the original copyright registration forms as I recall, as Summy issued the work in multiple arrangements in 1935. The revised version (with the "Happy Birthday" text) is officially under copyright in the USA (the blunt truth of the matter being that nobody has elected to spend the 7-figure sum in legal fees to challenge the validity of the copyright claim made by Summy in 1935) and therefore not subject to RoST, meaning it's officially protected in the 70pms countries until 1/1/2017.

The claim made by Summy, et al is that the 1912 (and any other pre-1935) issue was an unauthorized (and therefore illegal) publication. My own opinion is that Summy's claim on this work is extremely dubious. Unfortunately, I don't have a spare 2-3 million USD to drag it through the years of litigation to finally drive the stake through its heart and stuff its mouth with garlic.

PS: If you really enjoy reading this sort of thing, a legal research paper on the issue is available for free download as this URL: http://papers.ssrn.com/sol3/papers.cfm? ... 111624#%23