Why Should We Pay for ‘Happy Birthday’?

The famous birthday song—more than a century old and still protected by copyright—shows how copyright law has become a corporate welfare program.

The oldest person in the world, a New Yorker named Susannah Mushatt Jones, recently celebrated her 116th birthday. But the song they sang to commemorate the event, the familiar “Happy Birthday to You,” is even older. That song dates back to 1893, six years before Ms. Jones’s birth.

And therein lies a peculiar tale. The people who organized the birthday celebration at a senior citizen center in Brooklyn may owe money for the privilege of serenading this most senior of senior citizens. Believe it or not, “Happy Birthday to You” is still protected by copyright.

It’s a lucrative copyright. Warner Music Group allegedly earns $2 million per year from this 19th-century song. Whenever the birthday melody is sung on television or a film, or even in a public performance (including restaurants and possibly senior citizen centers), money is due to the copyright holder.

The use of the song in a film is rumored to cost as much as $10,000. The steep price tag has inspired some filmmakers to look for less expensive alternatives. Don’t be surprised if you see a birthday scene on screen with revelers singing “For He’s a Jolly Good Fellow” instead. That song, dating back to 1709, is in the public domain.

The “Happy Birthday” song was in the news again last week with the discovery of a 1890s variant of the composition in a library archive in Kentucky. This manuscript of a similar song, entitled “Good Morning to You” may serve as an important piece of evidence in the litigation over the validity of Warner’s copyright.

Yet this raises the bigger question: How can a song from the 19th century be protected by copyright? Don’t songs (and other works) enter the public domain after a reasonable amount of time?

Welcome to the crazy world of copyright law—or, as I prefer to call it, “Intellectual Property Rights Gone Wild!” Mull over this strange comparison: If you cure a disease or invent a better mousetrap, you can collect on the patent for just 20 years. But if you draw a picture of a mouse or write a song about a disease, you can protect your rights for more than century. Under what topsy-turvy logic does Mickey Mouse deserve more government protection than the polio vaccine?

In the case of “Happy Birthday to You,” the ownership claim is based on a filing for a copyright in 1935 by a company later acquired by Warner/Chappell Music. The new owner paid $25 million in 1988 for that valuable property, and has been collecting licensing fees for more than a quarter-century. But Warner got a big boost with the passage of the Sonny Bono Copyright Law of 1998.

Under the generous terms of this law, copyrights of corporate creations can last, in some cases, for up to 120 years! And works by an individual creator can stay in copyright until 70 years after the death of the author. In the case of an older work such as “Happy Birthday to You,” copyright expires 95 years after publication. If Warner is able to support its claim of a 1935 publication date, we will be paying for the privilege of singing this melody for another 15 birthdays.

Copyright law wasn’t always a corporate welfare program. The first federal copyright law, from 1790, only allowed a 14-year copyright, with the possibility of an additional 14-year extension if the right holder were still alive. That bill, signed into law by George Washington, didn’t even take up an entire page when it was published in the newspaper. But current copyright statutes, in comparison, would fill a thick book. And the general trend has been to give more and more protection to those intellectual property owners who have money to hire lobbyists and lawyers.

We can’t even pretend that these extensions protect the rights of composers—no songwriter in history has lived long enough to survive a current-day copyright term. Even Irving Berlin, who died at age 101 in 1980, couldn’t outlive the rights to his songs. In 2015, if you want to sing “White Christmas” or another classic Berlin hit on record or in public, be prepared to fill up the stockings of the corporate owner.

I fear that the Kentucky version of “Happy Birthday to You” won’t be sufficient to dislodge this egregious copyright claim. The version in the archive manuscript is different in significant ways from the birthday song we all know in the current day. (In an odd twist, the early version is actually easier to sing that the familiar melody with its awkward octave leap.) I don’t believe that Warner has the right to collect royalties on such an old song, but I doubt that this new discovery will be the silver bullet that puts its IP claims to rest.

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The real solution to our copyright mess is to fix the law. Artists should enjoy copyright during their lifetime. A surviving spouse should also have a claim to this income stream. But when well-heeled corporate owners still collect big sums a century after a composer’s death, the system is broken.

We are coming up to exactly that anniversary with the birthday song. The composer of the melody, Mildred J. Hill, died on June 5, 1916. Let me suggest that Warner celebrate the 100th anniversary of her passing by voluntarily placing the song into the public domain. Then again, the court may finally put an end to this farce before we get to that date.