Stick around until the lights come up after any movie in which characters sing “Happy Birthday to You” (and there are probably a dozen of those every year), and one of the last credits you see will be a copyright notice for that song, noting that it was used with the permission of Warner/Chappell Music, Inc. Warner traces its claim to the copyright in “the world’s most popular song” to some piano arrangements of it that were first published in 1935, a claim which, if valid, will not expire until 2030, thanks to various copyright term extensions. Warner’s permission to use the song in movies and other commercial settings does not come cheap.
A few years ago, George Washington University Law Professor Robert Brauneis published a magisterial article entitled “Copyright and the World’s Most Popular Song” (available here) which makes a strong case that, notwithstanding Warner’s highly lucrative and longstanding income stream from “Happy Birthday,” the song in fact is in the public domain, copyright protection having been forfeited either before the 1935 publications (it is well documented that the song as we know it had already been around for several decades by then) or as the result of a subsequent failure to properly renew the copyright in 1962. It is a fascinating window into the business of music in the United States.
Armed with Professor Brauneis’s formidable scholarship, the producers of a forthcoming documentary about “Happy Birthday to You” have filed a class action law suit against Warner, seeking a declaratory judgment that its copyright is invalid and the refund of millions of dollars in licensing fees collected over the past several years. We will watch this one closely.
Yet to be heard from is the knucklehead who first added the off-key coda “. . . and many more.”