According to Guinness World Records, "Happy Birthday to You" is one of the most popular songs in the English language. Who doesn't know the standard tune sung to celebrate the anniversary of someone's birth? Most people probably take it for granted that they can sing it whenever or wherever they want.
They would be wrong, as the San Francisco band Rupa & the April Fishes found out April 27. The group was recording a live album at the Independent, a music venue in San Francisco. At midnight, which happened to be the birthday of lead singer Rupa, the rest of the band broke into a rendition of "Happy Birthday to You."
They thought nothing of it until their lawyers later informed them that they'd have to pay a $455 licensing to Warner/Chappell Music to use the song on the album. Warner/Chappell, part of the Warner Music Group, owns the copyright to "Happy Birthday." That means that anyone who performs the song in public or uses it for any commercial purpose has to pay up.
The company rakes in a cool $2 million a year in licensing fees for the "Happy Birthday" song. Anytime a filmmaker wants to create a realistic birthday scene? "Happy Birthday" e-cards? Ka-ching. Same for restaurants, which is why if you're out celebrating someone's birthday, the waiters have to serenade them with something else.
The American Society of Composers, Authors and Publishers, known as ASCAP -- the song royalty police -- even tried to get the Girl Scouts to pay to sing "Happy Birthday" around the campfire but backed off when it became a public relations debacle.
Now three different lawsuits have been filed -- including one by Bay Area musician Rupa, Rupa Marya v. Warner/Chappell Music Inc. -- arguing that "Happy Birthday" should be in the public domain. The three complaints, which have now been consolidated into one class-action suit in the U.S. District Court for the Central District of California, seek to prevent Warner/Chappell from continuing to charge licensing fees and to reimburse the plaintiffs for previous charges.
"It just seemed bizarre and strange that someone could claim to own 'Happy Birthday,'" says musician Rupa. "The more I read into it and learned about it, it seems like an egregious example of how copyrights have been a very misguided and misdirected thing in the United States."
Donahue Gallagher Woods in Oakland is one of three law firms handling the lawsuit.
"I don't think a lot of people have looked at this closely until recently," says Andrew MacKay, one of the Donahue Gallagher Woods attorneys.
Someone who has is George Washington University law professor Robert Brauneis, who spent two years researching the "Happy Birthday" copyright. Brauneis, who wrote a 68-page article on the subject, argues that Warner's copyright should have only applied to certain arrangements of the song melody. It seems that no one can prove -- or at least has done so yet -- who actually wrote the lyrics.
The song has a long history dating back to the late 1800s. On this much everyone agrees: Patty Hill, a kindergarten principal in Louisville, Ky., and sister Mildred Hill, a composer, wrote a song called "Good Morning to All" that would be easy for schoolchildren to sing.
The sisters sold the song to Clayton F. Summy. The Summy Co. first registered for a copyright for the songbook Song Stories for the Kindergarten, which included the melody to "Good Morning to All" in 1935. The Summy Co. formed Birch Tree Group. Warner/Chappell acquired the company in 1988 -- for $25 million. The company maintains that based on the 1935 U.S. copyright registration -- which does not expire until 2030 -- it owns the song.
Yet Brauneis says the actual lyrics to "Happy Birthday to You" developed informally over time and should therefore be in the public domain.
It appears a court may have to decide. Who would have thought the "Happy Birthday" song would wind up in a very unhappy court fight?
Tammerlin Drummond is a columnist for the Bay Area News Group. Her column runs Tuesday and Sunday. Contact her at firstname.lastname@example.org.