"Freedom of Expression
Overzealous Copyright Bozos
and Other Enemies of Creativity"
by KEMBREW McLEOD

HAPPY BIRTHDAY SCREW YOU

Like with many things relating to copyright, the story of how Time-Warner’s music-publishing division came to own “Happy Birthday to You” is long, convoluted, and absurd. It’s also a telling narrative about folk music—how it evolved from a living, breathing part of culture to little more than one musical genre among many, a mere section of a record store. When I first began cobbling together a legal and social history of “Happy Birthday to You,” I was surprised to discover that there was virtually nothing published on the subject. Unearthing the song’s genealogy was difficult because Warner-Chappell Music, then a subsidiary of TimeWarner, ignored my repeated requests for internal documents that might shed light on the song’s origins. Finally, Don Biederman—an executive vice president at the company—informed me in a faxed letter that the company does in fact maintain “files concerning HBTY in various departments of our company.” However, he could not provide me with any information on “Happy Birthday to You” because “we regard this information as proprietary and confidential.”

Despite the “owner’s” lack of cooperation, I can now tell the story—after nearly ten years of digging through journals, books, music-trade papers, old master’s theses, and other dusty sources. It goes like this: Schoolteacher Mildred J. Hill and her sister Patty published the song’s melody in 1893 in their book Song Stories for the Kindergarten, calling it “Good Morning to All.” However, the Hill sisters didn’t compose the melody all on their own. There were numerous popular nineteenth-century songs that were substantially similar, including Horace Waters’s “Happy Greetings to All,” published in 1858. The Hill sisters’ tune is nearly identical to other songs, such as “Good Night to You All,” also from 1858; “A Happy New Year to All,” from 1875; and “A Happy Greeting to All,” published 1885. This commonality clearly suggests a freely borrowed melody (and title, and lyrics) that had been used and reworked throughout the century. Children liked the Hill sisters’ song so much that they began singing it at birthday parties, changing the words to “Happy Birthday to You” in a spontaneous form of lyrical parody that’s common in folk music.3

It wasn’t until 1935 that the Hill sisters finally got around to registering a copyright on the melody and the new birthday lyrics, claiming both as their own. The years rolled on, and so did the lawsuits, of which there were many. Then, in 1988, Birch Tree Group, Ltd., sold “Happy Birthday to You” and its other assets to Warner Communications (which begat TimeWarner, which will one day give birth to OmniCorp, or a similarly named entity). The owners of Birch Tree told the Chicago Tribune that it was too time-consuming for a smaller company to monitor the usage of “Happy Birthday to You” and that “a major music firm could better protect the copyright during its final 22 years.”4

It turns out TimeWarner hit the jackpot when the U.S. Congress added twenty more years of protection to existing copyrights. As a result, “Happy Birthday to You” won’t go into the public domain until 2030. How better to protect an investment than to aggressively police the song’s use? The current owner does this job quite well, much like the song’s previous stewards. One person who was very well acquainted with royalty payments and copyright law was Irving Berlin, the famous American popular-music composer. His 1934 Broadway play As Thousands Cheer included a scene where actors sang the litigation-prone birthday song. Although the lyrics of “Happy Birthday to You” had not yet been copyrighted—that wouldn’t happen for another year—the Hill sisters’ publishing firm nevertheless claimed that his use of the song was an infringement on the melody of “Good Morning to You.” The illicit singing was in all probability very innocent, but as was the case with later lawsuits against other infringers, they didn’t take pity on Berlin.

Postal Telegraph, a company that began using “Happy Birthday to You” for singing telegrams in 1938, found itself treading in copyright-infringement waters, as did Western Union. Western Union career man M. J. Rivise remembers, “From 1938 to 1942, most of our singing telegrams were birthday greetings, and ‘Happy Birthday to You’ was the cake-taker.” Postal Telegraph apparently received permission from the American Society of Composers, Authors, and Publishers (ASCAP)—the organization that collects royalties for song-publishing companies—to use “Happy Birthday to You” without paying royalties. By 1941, ASCAP changed its mind and hiked the royalty rates. Western Union and Postal Telegraph refused to pay, commissioning birthday songs based on the public-domain melodies of “Yankee Doodle” and “Mary Had a Little Lamb.” The public thought they were pretty lame, as you might imagine, so by 1950, the singing of “Happy Birthday to You” resumed, with the licensing problem sorted out. It’s likely that singing telegrams were instrumental in popularizing and ritualizing the birthday song throughout the United States.5

Roy Harris, a twentieth-century composer of classical music, got into trouble when he used part of the song in his “Symphonic Dedication,” which honored the birthday of another American composer, Howard Hanson. Var i e t y reported, “Keeping the occasion in mind, Harris brought his composition to a climax with a modern treatment of ‘Happy Birthday.’ After Harris’ piece had been introduced by the Boston Symphony he was compelled by the copyright owners to delete the ‘Happy Birthday’ passage from his score.” P.D.Q. Bach, the “Weird Al” Yankovic of the classical-music world, avoided using any strains of “Happy Birthday to You” in a birthday ode to his father because he was afraid of being sued. Instead, he based it on a traditional German birthday song. Even Igor Stravinsky was slapped on the wrist when he cited a few bars of “Happy Birthday to You” in one of his symphonic fanfares (the composer reportedly assumed it was an old folk tune).6

Although I found little evidence to suggest that “Happy Birthday to You” was an old folk song dating back to the eighteenth century, as I had first suspected, it obviously came out of the folk-song tradition that valued borrowing and transformation. As with most folk songs, there was no single “author”; instead, the tune slowly evolved over the years with anonymous contributions by many people. The Hill sisters based “Good Morning to All” on an existing melody, and the lyrics were spontaneously generated by a bunch of five- and six-year-olds. Because the melody, first published in 1893, is now in the public domain and the lyrics weren’t even written by the Hill sisters, there is little reason why the copyright to “Happy Birthday to You” should still be enforced. But that hasn’t stopped the song’s stewards from taking every measure to prevent others from singing it without paying royalties.

Footnotes:
2. E. Barkley, Crossroads.
3. R. Lissauer, Lissauer’s encyclopedia of popular music in America;
L. Smith, Los Angeles Times, 1985; G. Claghorn, Women composers
and songwriters; J. J. Fuld, The book of world-famous music; J. Byron,
Kuro5hin; V. L. Grattan, American women songwriters. Some of this
material was presented in my earlier book, Owning Culture.
4. Chicago Tribune, Maybe you could get it for a song, 1988, p. C10.
5. I. Ball, Daily Telegraph (London), 1988; D. Ewen, Var i e t y, 1969; B. L.
Hawes, The birthday, p. 22.
6. D. Ewen, Var i e t y, 1969, p. 4; E. Blau, New York Times, 1986; N. Lebrecht,
Daily Telegraph (London), 1996.

This shows another problem with copyright. The fact that you can sit on a song for forty years before getting one should be outlawed.

There needs to be a creation date on every piece and that, not the actual date you get around to copyrighting it, should be the date from which copyright law is counted. Failure to put the correct date on a work should invoke punishments including reduction of copyright or the revoking of said copyright.

Thank god that we can still milk every last penny out of Happy Birthday while we let abandoned works disappear due to the inability to copy said works legally.

At a time when we should be preserving our history we are allowing more and more of it to slip away all thanks to a little c with a circle around it.

FREE MICKEY -- FREE MICKEY

Prehaps one of the few songs that will survive to make it into public domain when its protection time has run. To be truthful, it serves no useful purpose for this song to still be under copywrong protection.

As is demonstrated within the article the song didn't spring to be in a day. No, it was built upon works of others with simular if not identical tunes or words.

What is different about then and today is that today if you were to do such you would have your britches sued off you. As such you can not borrow on other works that infringe. Trouble with this infringement thing is that many of the tunes that present day song writers and those in the future will have is two fold.

One is that every song writer is influanced by music they heard growing up. Some tune the author worked on for a long time comes out like one of 20 or 30 years ago. This will blunt and dull creativity and the senergy of building on the old for something new. In effect giving you less music varitity.

The second problem with this is that in spite of all the variance in styles, there are only so many scales, so many notes, and so many ways to play the instruments. Admittedly, the range is wide but it is not endless. As years stack on years and writers do what they do, at some point you must again reach a point where anything you try is a repeat of someone else striving to not infringe while creating. Ask any group trying to preform their own works and you will find at some point they wrote an originial work, put a lot of time into the development of it, only to find out it infringes on another work. There are only so many combinations. Out of those combinations many are not useful. Either it is a clash of chords, notes, and other stuff that makes the listener cringe, or it is harmonous and is like something else.

By locking the copywrong for so long a time, it does nothing for creativity, instead it kills it.

Thankx KM for the history lesson! great journal work! great writing very informative it sure makes me think! Right On! I wish only that life was just a "happy birthday song" away!
It reminds me to watch out for those captialists!
cheers

Well, yet another great article, and another story illustrating what I like to call Brians Law.
"Having a social conscience is nice, but the bottom line is we are here to make money"
I've known about some of this for a while, but it always gets me how they go after people using it. Most restaraunts stopped using HBTY, and now do some other form, often probably written by lawyers. It's pretty damn sad when a fun, popular, pretty mindless little song can cause such controversy. When is the industry going to figure out that if you take all you can get, soon there will be nothing left to take?
ttmmm

Superb material being posted today. Keep it up!

Too bad someone with deep pockets wouldn't intentionally GET sued for using this song, so that a court case deciding whether or not the copyright is legal could happen. Just because someone copyrighted something that was based on traditional tunes shouldn't mean that the copyright should stand. It is such vicious circle. A song, based on traditional songs, copyrighted, and locked away forever, so that new songs cannot be created from old traditional songs. Yep, copyright laws are sure good for creativity, aren't they?

Not to mention that if this song doesn't reach the public domain until 2030, that this song will have been under copyright for 95 years. Is this what our forefathers really had in mind when they ALLOWED copyrights for a total of 28 years, if renewed? I think not.

I just sang that song to a co-worker. Should I be afraid of being sued for copyright infringement?

Be afraid, be very afraid. I'm sure Time-Warner is looking for your IP address right now.

Hmmmm....Check me if I'm wrong here, but under the terms of all the copyright changes (including the one that added the bonus 20 yrs) isn't a work considered copyrighted when affixed without the criteria to register for the copyright term to begin? If so, then this article tells us that the tune has already been covered under copyright for 100 years!

In any case, it was definately not owned by the people that filed the copyright. The tune was already in existance prior to the creation of the lyrics....Which are NOT the same lyrics as the original copyrighted song. Now since the lyrics were created by an unknown contributor(s), the melody already existed in public domain and there are no squatter's rights anywhere in copyright law it seems that the copyright claim is incredibly weak at best.

Then there's the whole copyright abuse section of the law that is supposed to protect us from bogus claims on works that are in the public domain (thank you, Jib-Jab for bringing that one more to the surface during your legal wrangling

Tom...You Da Man|!

Great posts my friend!