Misplaced Pages

Revision as of 19:04, 22 May 2003

The song Happy Birthday was written by American sisters Patty and Mildred Hill in 1893 when they were school teachers in Louisville, Kentucky. The verse was originally intended as a classroom greeting entitled Good Morning To All. The lyrics were copyrighted in 1935, 11 years before Patty's death, and the ownership has swapped hands in multi-million dollar deals ever since; the copyright is currently owned by Warner Communications who bought the rights in 1985 and is scheduled to expire in 2021.

Happy Birthday is now among the top three most popular songs in the English language, along with "Auld Lang Syne" and "For He's a Jolly Good Fellow".

Happy Birthday a.k.a. Good Morning to All
editorial by J. Byron, May 2003, revised

My own comments do not constitute legal advice in any way. I accept no liability resulting from use/misuse.

There is a 1935 copyright registration for Happy Birthday, but the melody "Good Morning to All" was published in 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.

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.

"Good Morning to All" included in:
Song Stories for the Kindergarten, pub. 1893
Song Stories for the Kindergarten, revised ed., pub. 1896

Words: Patty Hill (-1946) Music: Mildred Hill (-1916)

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) That "version" of the "birthday" melody may suffice for some people. (The law of other countries might affect the status outside the U. S.)

Allegedly, after the Hill's publication of "Good Morning to All" Robert Coleman sang the "birthday" lyrics with the "Good Morning to All" melody. Later the "Happy Birthday" lyrics combined with the Hill's published melody showed up on stage. The Hill family allegedly won a 1934 law suit granting them the 1935 copyright mentioned endlessly on the Web. (Which does not affect today's public domain status of "Good Morning to All.")

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, melodically "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 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 registration for say, f# 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.)

In summary, 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. One lawyer's site cites http://laws.findlaw.com/2nd/947867.html - a similar situation. However, adding an original 8-line verse to a pre-existing song is more substantial than changing 2 words of a song!

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.) The Web page owner/publisher told me via email, that they know they would lose any challenge to his claim.

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)" - http://members.aol.com/katzmarek/pdmusic.htm

The words "Good Morning" were substituted with "Happy Birthday" by others than the authors of "Good Morning to All." *Additional alternative substitutions were also published. (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, melodically "Happy Birthday" and "Good Morning to All" are identical.)

In the 1920's Robert Coleman published the "Happy Birthday" variant in compilations of his own. One such example is: The American Hymnal, Robert H. Coleman, 1933. A second example NOT by Coleman is: Children's Praise and Worship, Gospel Trumpet Company, 1928.

It is Mr. Katzmarek's belief that because the "Happy Birthday" variant was published in these songbooks without copyright notice (no author was stated) that it became public domain upon publication under the 1909 copyright law. (Reportedly, some legal experts and producers agree, but Warner apparently disagrees.) It is curious that Warner doesn't challenge Katzmarek regarding his claims.

An interesting earlier songbook noted by Mr. Katzmarek is: 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.)

These sites also have the Coleman songbooks in their archives:
http://archives.twu.ca/hymnlist.htm
http://www2.bju.edu/resources/library/catalogs/american_hymn/hl_1921_40.html
http://www.swbts.edu/libraries/bowld/thadroberts.shtm

After Coleman's publication, the "Happy Birthday" variant showed up on stage. The Hill family allegedly won a 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 be somewhat at odds.

Sources for "Good Morning to All" sheet music:
http://www.pdinfo.com/rp/R002152.htm
http://music.netstoreusa.com/songs/7005/HL00502604~958965.shtml

This page offers an mp3 sample of "Good Morning to All:
http://mac3.a-cappella.com/shop/product_information.asp?number=2115C&aitem=1145

Other editorials about "Happy Birthday"
http://www.attachemag.com/archives/01-02/story2/story2.htm
http://www.snopes.com/music/songs/birthday.htm

The "Classical Archives" has a Happy Birthday midi w/variations:
http://www.classicalarchives.com/encores.html

Copyright and public domain in the U. S.:
http://www.unc.edu/~unclng/public-d.htm
http://www.pdinfo.com/source/N374339.htm
http://www.copyright.gov/faq.html

Public domain research services:
http://www.musicreports.com/ppl.asp
http://www.pubdomain.com

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 use/misuse. This is not an endorsement of any link(s) in this editorial.

My own contribution:

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.

© 2003, J. Byron, but dedicated to the public domain.

if you don't like that...

Mer-ry to You!
Mer-ry to You!
Mer-ry Dear Fri-ends
Mer-ry to All.

Also:

• Happy Birthday, a 1981 LP by Altered Images (including the hit title track)
• Happy Birthday, a 1996 LP by Prince
• Happy Birthday, a 1969 (?) LP by Pete Townshend
• Happy Birthday, a 2000 film featuring John Goodman and Christopher Lloyd