How much would you pay to sing “Happy Birthday to You” (also known simply as “Happy Birthday”) in a public place? Music publisher Warner/Chappell made sure the price was surprisingly high for decades, but that is no longer the case, thanks to a court ruling stating that they no longer legally owned the copyright.
Film director Jennifer Nelson brought the high-profile copyright case to court after Warner tried to charge her a $1,500 licensing fee. According to the Hollywood Reporter, she was making a documentary on “Happy Birthday” and became determined to prevent Warner/Chappell from ever collecting on the song again.
As Nelson’s company, Good Morning to You Productions Corp, claimed there was “irrefutable documentary evidence, some dating to 1893, shows that the copyright to Happy Birthday to You, if there ever was a valid copyright to any part of the song, expired no later than 1921.”
Nelson charged that the publisher’s copyright was invalid due to abandonment, the length of the copyright term, and Happy Birthday‘s general publication – forcing the court to dive into the song’s ancient history.
Sisters Patty-Smith and Mildred Hill wrote the original song’s lyrics in the late 19th century. They borrowed the melody from the 1893 song Good Morning to All – which is in the public domain, undermining Warner/Chappell’s legal claim.
In 1935, the music publisher first copyrighted “Happy Birthday” and has been profiting ever since.
So how much is “Happy Birthday” worth?
“Happy Birthday” is the English language’s most popular song, and Warner has reaped in over $50 million in fees over the years. The publisher expected to have the song until 2030 and collect another $14 to $16.5 million according to Rolling Stone Magazine. Instead, they will be paying $14 million to the plaintiffs in the class-action suit. The plaintiff’s attorney is seeking $4.62 million for legal fees, and the rest will go to reimbursing all the people who paid for the song’s use.
U.S. District Judge George H. King resided over the case. In September, he determined that Warner’s “Happy Birthday” copyright claim was invalid, but stopped short of putting the song in the public domain. After the decision, Warner threatened to appeal and the two sides began negotiating a settlement.
According to the final terms, the judge will declare “Happy Birthday” into the public domain and Warner pay out the $14 million and waive their rights to appeal. In exchange, the music publisher avoids a trial to determine if they should be punished for years of illegally obtaining fees.
Judge King is reviewing the agreement for final approval.
According to a memorandum supporting the final deal, Happy Birthday‘s exclusion from the public domain has been expensive.
“Because Defendants have charged for use of the Song, untold thousands of people chose not to use the Song in their own performances and artistic works or to perform the Song in public. This has limited the number of times the Song was performed and used. After the Settlement is approved, that restraint will be removed and the Song will be performed and used far more often than it has been in the past. While there is no way to make a reliable estimate of the increase that will result, there can be no dispute that the increase will be substantial.”
Warner/Chappell posted its quarterly earnings, which came with a operating loss. The publisher said the “Happy Birthday” case was to blame for the dismal showing.
[Photo by Hulton Archive/Getty Images]