Happy Birthday song is not copyrighted, claims new 'smoking gun' document

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Is the Happy Birthday cash cow finally over? Lawyers have discovered a “smoking gun” document which “conclusively proves” that the world’s most popular song is not covered by copyright.

Hollywood is ordering the cake and candles after evidence disclosed in a long-running court case threatened to strip publishers Warner Chappell of the estimated $2m a year it earns annually from the use of Happy Birthday in films and television shows.

The most recognised song in the English language according to Guinness World Records is also the least heard in its entirety in popular culture.

When the song is sung on screen, the participants often break off into “For he’s a jolly good fellow”, which is in the public domain, before its conclusion, lest Warner Chappell comes looking for its slice.

Now a blurry picture from an 88 year-old songbook, found in Warner Chappell’s files, has delivered the “proverbial smoking gun” according to lawyers for filmmakers working on a documentary about the history of the song, who are suing its publishers for the right to use it without a license fee.

Director Jennifer Nelson objected to Warner’s demand that she pay $1,500 to use the song, insisting that it was in the public domain.

A batch of documents, mistakenly withheld from lawyers for Ms Nelson, included a digital copy of the 15th edition of The Everyday Song Book, published in 1927, which contains the Happy Birthday lyrics.

Her team then tracked down an earlier edition published in 1922, found in the archives of The University of Pittsburgh, which included a version of Happy Birthday, published without a copyright notice, unlike other songs in the book.

The melody for “Happy Birthday to You” is attributed to American sisters Patty and Mildred J. Hill who introduced the song with the lyrics “good morning to all” to Patty’s Kentucky kindergarten class in 1893.

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The Hill sisters assigned the rights to a publishing company owned by Clayton Summy and the song in the 1922 book is printed with a notice that read “Special permission through courtesy of The Clayton F. Summy Co” rather than a copyright claim.

The documents and the book “prove conclusively that the song is in the public domain”, predating the first published 1935 copyright of its piano melody, Ms Nelson’s lawyers claim.

The 1935 copyright would only cover different arrangements of Happy Birthday, not the underlying rights to the song itself, argued the lawyers. A further hearing in the California court case is scheduled for Wednesday.

Mysteriously, the crucial line of text published underneath the song's lyrics was “blurred almost beyond legibility” in the digital copy that Warner Chappell belatedly handed over in discovery. Ms Nelson’s lawyers said it was “the only line of the entire PDF that is blurred in that manner.”

There are several interested parties supporting Ms Nelson’s suit. A 2003 film The Corporation claimed that Warner charged up to $10,000 for the song to appear in a film. The director of the acclaimed low-budget documentary Hoop Dream agreed to pay $5,000 to use the song because a birthday scene was integral to his film.

1893 - Siblings Patty and Mildred J. Hill introduce the piano melody “Good Morning to All” to Kentucky class. he Hill sisters assigned rights to a publishing company owned by Clayton Summy

1912 - The lyrics “Happy Birthday to You” are attached to the song as it spreads through schools. First appears in print with melody and lyrics but no copyright attached.

1935 - A piano arrangement of the melody is copyrighted by a company later known as Birch Tree Group.

1988 - Warner Music Group acquired the song from Birch Tree for around $25 million.

2016 – EU copyright due to expire on December 31. Warner Chappell believes US copyright extends to 2030.