“Happy Birthday” (or “Happy Birthday to You,” as it’s properly known) may be the most popular song in the world. Over the years it’s been used in ads for everything from Frosted Flakes to Oldsmobiles to insurance to the Oregon State Lottery, translated into myriad languages, and been featured in at least 140 movies. Originally composed in 1893, it’s been sung at generations worth of birthday parties, and Igor Stravinsky and Aaron Copland have even written pieces based on its melody.
So it’s no surprise that “Happy Birthday” is a cash cow, and has been since it entered the American vernacular. The song, which can cost as much as $100,000 to license for a commercial work, now brings in $2 million in annual revenue for its owner, a division of Warner Music Group.
But it may not be profitable for much longer. Last month, in the midst of a lawsuit brought by a filmmaker working on a documentary about “Happy Birthday,” controversy erupted when she claimed that the song may have lapsed out of copyright decades ago.
That could mean that lots of baseball stadiums, restaurant chains, and movie studios that have paid to license “Happy Birthday” are entitled to their money back.
The battle began when filmmaker Jennifer Nelson decided to sue Warner in 2013 for trying to make her pay a $1,500 fee to use the song in a film she’s making about the two young sisters who wrote the original melody.
Until last month, Nelson's suit relied mostly on arguments put forth by George Mason law professor Bob Brauneis in a thoroughly researched 2010 paper that argued there should probably never have been a copyright claim on the song in the first place because, as he writes, ‘Happy Birthday to You’ became extremely well known as the standard birthday song in the two decades between 1915 and 1935.” In fact, no one knows who wrote the original “Happy Birthday” lyrics, according to Brauneis, and therefore no copyright claims, or claims of infringement were made for nearly three decades.
But the current case appeared doomed as Warner successfully argued that the only copyright claim that mattered came into force in 1935. That was when the Clayton F. Summy Co., which had first published the sisters’ song in 1893 under the title “Good Morning to All,” and thus claimed the rights to its melody, registered an arrangement of “Happy Birthday” containing the original melody and the lyrics we know today.
Under applicable laws at the time, the clock on the copyright to this combination — the one we all know — would not expire until 2030.
But two weeks ago, Warner turned over a trove of 500 pages of evidence, including approximately 200 pages of documents the suit claims were “mistakenly” not produced when the suit first began.
One page stood out from the rest: a 1920s edition of the “Everyday Song Book,” a compilation of popular tunes, included a version of “Happy Birthday” called “Good Morning and Birthday Song.”
This version had a line under it that was completely blurred out in its digitized version.
That was pretty “curious,” the suit says, since, “it is the only line in the entire PDF that is blurred in this manner.”
So the suit’s lawyers went back and found a version of the songbook with a clearer picture of the line.
And what did it say?
“Special permission through courtesy of the Clayton F. Summy Co.”
This is a major development for two reasons, the suit argues.
First, according to the 1909 Copyright Act, which was in force until the 1970s and thus would have covered the 1935 copyright registration, unless a work explicitly appears with the symbol ©; the word “Copyright”; or the abbreviation “Copr.,” it does not qualify for copyright protection.
You can see the difference here, where a copyright is clearly indicated for a song called “The Wind-Baby,” and then just below, the words and lyrics for “Happy Birthday” with the “special permission” line just beneath it.
In addition, if “special permission” signified that this publication was “authorized” by Summy, then, at the latest, the copyright on Happy Birthday, under applicable laws at the time, should have expired in 1997.
“If ‘1922’ was authorized then the copyright is over,” Mark Rifkin, one of the lawyers representing the plaintiffs, told Fusion.
Through a series of acquisitions over the next several decades, the rights to "Happy Birthday" ended up in the hands of Warner/Chappell. The company has responded to the new arguments by saying that that there is no evidence that Summy authorized that publication.
The filmmakers are seeking monetary damages, not just for Nelson, but for anyone who’s ever been charged to use the song.
“All we know from the public record so far is that Warner collects approximately $2 million per year for Happy Birthday,” Rifkin said. “We will ask that all of that be returned to everyone who has had to pay for the song. It will be up to the court to determine how many years back we can go to get refunds.”
The next hearing is scheduled for Wednesday, and U.S. District Judge George King could issue his ruling at any point thereafter. At which point we could finally blow out the candles on this saga.
Rob covers business, economics and the environment for Fusion. He previously worked at Business Insider. He grew up in Chicago.