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The “Happy Birthday” song might not actually be copyrighted after all

on July 29, 2015, 2:10pm

“Happy Birthday” is one of the world’s most popular songs, but singing it in public or on TV could cost you a pretty penny. This is due to its copyright, which Warner/Chappell has owned, or rather “claims” to have owned, since the 1930s. The music publishing company is believed to be raking in as much as $2 million each year from film and TV producers seeking to use the celebratory standard in their projects. (Heck, just last year Stephen Colbert sang a revised version of the song –to the tune of “The Star-Spangled Banner” — just to avoid fees.)

That all might change soon, however, thanks to a lawsuit filed by Good Morning To You Productions, a company that’s been researching the history of “Happy Birthday” for a forthcoming documentary. The suit states that Warner/Chappell doesn’t have any claim to the song because it was offered free to the public by its creators, long believed to be sisters Parry and Mildred Hill. (“Happy Birthday” takes its melody from the tune “Good Morning To All”, also believed to be penned by the Hills.)

The filmmakers behind Good Morning To You Productions base this claim on the recent discovery of old songbooks dating back to 1922 and 1927 which contain “Happy Birthday” with no copyright notice whatsoever. The publishing of such material — presumably with the creators’ permission to include no copyright — essentially makes it part of the “public domain,” and, thus, makes Warner/Chappell’s own 1935 copyright null and void. In the lawsuit, the filmmakers’ lawyers explained:

“It and earlier versions of the song that Plaintiffs subsequently located through their own investigative efforts conclusively prove that any copyright that may have existed for the song itself (ie the setting of the Happy Birthday lyrics to the melody of Good Morning) expired decades ago. This newly discovered evidence is fully consistent with Plaintiffs’ arguments that (i) Patty Hill gave the lyrics to the public when she wrote them as a version of the song she wrote with her sister Mildred Hill and (ii) that the 1935 copyrights covered only specific piano arrangements of the song. More importantly, it trumps all of Defendants’ arguments.”

As A.V. Club points out, even if the 1920s songbooks themselves had a copyright, they likely would’ve expired by now, or at least very soon. Either way, it looks as though “Happy Birthday” finally might soon be available to use free of charge.

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