Janice A. Oser, Esq.

Time Warner does, at least in part. The company shares the copyright on the words and music of “Happy Birthday to You” with a successor to the rights of its authors, to the tune, reportedly, of about $2 million a year. The copyright is not due to expire in the United States until 2030. The right to collect license fees and royalties for commercial use and public performance of the song is enforced most noticeably by ASCAP, the American Society of Composers, Authors and Publishers.

Under the Copyright Law, a work is performed publicly if it is performed “at a place open to the public or at any place where a substantial number of persons outside of a normal circle of family and its social acquaintances is gathered.” So ASCAP could not come after you for singing “Happy Birthday to You” at a private party at home for family and friends, but singing it at a party in a restaurant is a different story.

As is the serenading of the Pope with “Happy Birthday to You” at Yankee Stadium in New York City and on the South Lawn of the White House, among other places, during his recent visit to this country. Technically speaking, ASCAP could go after royalties for those public renditions of the song, but ASCAP does not always enforce the copyright on “Happy Birthday” with respect to such occasions. Especially after the public relations fiasco it suffered after going after licensing fees for its members' copyrighted songs from the Girl Scouts.

Yes, the Girl Scouts. Specifically, Girl Scout camps among other camps. The Report of the House of Representatives on the Copyright Law states that one of the principal purposes of the definition of “publicly” in that law was to make clear that “performances in ‘semipublic’ places such as clubs, lodges, factories, summer camps, and schools are ‘public performances’ subject to copyright control.”

According to an article in the New York Times (“Ascap Asks Royalties From Girl Scouts, and Regrets It," by Elisabeth Bumiller, December 17, 1996), ASCAP started making efforts in 1995 to collect licensing fees from summer camps, among them Girl Scout camps, some of which agreed to pay an annual fee (though considerably less than the fee that ASCAP had originally requested).

A public brouhaha ensued, with talk of Girl Scouts who were singing around campfires becoming subject to penalties for copyright infringement. ASCAP eventually retreated, somewhat, with a press release stating, according to the Times article, that it had not intended to charge for campfire sing-alongs, and had not threatened to bring suit against the Girl Scouts. ASCAP stuck to its principles and legal rights, however, and reportedly charges the Girl Scouts a symbolic $1 annual fee.

As far as “Happy Birthday to You” is concerned, the fact that it is copyrighted comes as a surprise to many ordinary folk. How can it be, one may wonder, that a song that has been embedded in our culture and in cultures around the world for so long can still be protected by copyright? The explanation is that Congress has extended the term of copyright protection numerous times, most importantly, as far as “Happy Birthday to You” is concerned, in 1976 and 1998. That is how it can be that the copyright on "Happy Birthday to You," which was secured in 1935, is not due to expire until 2030.

The song was actually written much earlier than 1935. The story of "Happy Birthday to You" begins with the composing of the melody in 1893 by Mildred Hill, who was teaching at the time in a kindergarten school in Louisiana. Mildred Hill’s younger sister, Patty Hill, an influential educator, put words to the melody so that teachers could use the song in greeting their students each day, in a song titled, "Good Morning to All."

Their song, “Good Morning to All,” was published in 1893 in a songbook for kindergarteners. Just who put the words to “Happy Birthday to You” to the melody and when this was done isn’t known, but the song was published with a stanza of the words to “Happy Birthday to You” in 1924. (Still with me? Hang in there.)

“Happy Birthday” had become very popular as a birthday celebration song in the 1930’s. By the mid-1930’s it had appeared in a Broadway musical and had been used by Western Union in its first singing telegram. Jessica Hill, sister of Mildred and Patty, administered the copyright on “Good Morning to All,” and when Irving Berlin made use of the melody in “As Thousands Cheered,” Jessica sued – successfully. By demonstrating the similarities between “Good Morning to All” and “Happy Birthday to You,” she prevailed in court and secured the copyright to “Happy Birthday to You” in 1935.

Some writers on copyright question the validity of the copyright on “Happy Birthday to You.” For example, an argument has been made that the melody to “Happy Birthday to You” is in the public domain because it is virtually identical to the melody of “Good Morning to All” and that “Good Morning to All” is in the public domain. Before testing this thesis, however, by organizing a chorus to hum the melody of “Happy Birthday to You” in Times Square on New Year’s Eve, one would do well to have an intellectual property lawyer on hand in preparation for a legal battle with ASCAP.

In any event, after securing the copyright on "Happy Birthday to You" in 1935, Jessica Hill published and shared the copyright on the song (words and music) with the Clayton F. Summy Company. The Summy Company was purchased by an individual who renamed it and eventually sold it, 1988, to Warner Communications – hence the current part ownership by Time Warner.

The extension by Congress in 1998 of the terms of existing copyrights by 20 years aroused strong protests, but was upheld by the United States Supreme Court. In an article about the case in the New York Times (“Justices Hear Arguments On Extensions Of Copyrights,” October 10, 2002), Linda Greenhouse wrote that “no member of the Supreme Court had a good word to say for the 1998 law” and that Congress had adopted the legislation “at the behest of the Walt Disney Company and other powerful corporate copyright holders.”

It was argued before the Court that with this extension of its term, a copyright had become the functional equivalent of a perpetual copyright. Under the first federal copyright law, enacted in 1790, the term of a copyright was 14 years, renewable for a second term of 14 years. With the enactment of the 1998 law, the total term of copyright was increased from 75 to 95 years for corporate copyright holders. For individual copyrights, the total term was increased from 50 to 70 years after the author's death. Nevertheless, according to the Times article, although the Justices appeared to agree that there should be some limit to the term of a copyright, they did not agree that they should be the ones to impose it.

The 1998 law extending the terms of existing copyrights is sometimes popularly known as the Mickey Mouse law, since it extended Disney’s copyright on Mickey Mouse cartoons and cartoons featuring the rest of the Disney characters. The copyright on the first Mickey Mouse cartoon, which had been due to expire in 2003, will not expire until 2023. (Note: the copyright pertaining to Mickey Mouse pertains to the cartoons. Mickey Mouse is also a trademark, protected in perpetuity so long as it is used commercially.)

Congress’ power to enact copyright laws derives from its power under the United States Constitution to promote the progress of science and the arts by securing “for limited times” to authors and inventors the exclusive right to their respective writings and discoveries. Arguably, at some point the terms of copyrights can become so long that they discourage rather than encourage creative efforts that could advance the progress of science and the arts. This is an argument advanced by many members of the Internet Generation, among whom copyright is increasingly becoming a very unpopular concept.

Popular or not, royalties for what is perhaps the world’s most popular song continue to flow. After the death of Patty Hill in 1946, Mildred's and Patty’s share of the copyright was bequeathed to the Hill Foundation, an educational foundation established by Patty and her sister Jessica. Control of the Foundation was bequeathed to their nephew Archibald Hill.

The story of the Hills and "Happy Birthday to You" has ended like this: Archibald Hill, a linguistics professor, died in 1992 and bequeathed ownership of his personal assets to his nurse, and control of the Hill Foundation to the Association for Childhood Education International, based in Maryland (“ACEI”). According to an article on its web site, ACEI receives royalties for "Happy Birthday to You," but it was some years after Archibald Hill's death before it did.