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(Not so) Happy Birthday!

Have you ever heard the song “Happy Birthday” performed by the wait staff at a restaurant?  If so, you were likely a witness to copyright infringement.  At least that’s what Warner/Chappel Music would maintain.

You see, Warner/Chappel Music, the publishing arm of Warner Music Group, claims to own the copyright to that very song, which has been called the most recognized in the English language.  And, Warner Music reportedly charges license fees of up to tens of thousands for use of the song, and receives royalties to the tune of $2 Million annually.

That’s also why you often see the use of alternative songs in movies and television shows.  Such shows avoid the license fees by using only a small portion of the song, or singing an alternative such as “For He’s A Jolly Good Fellow” or others

How is it possible that Warner Music owns these rights?  That’s what filmmaker Jennifer Nelson has been asking herself and, more recently, asking the federal courts.  Ms. Nelson was making a documentary on the history of the song when she received a letter from Warner Music demanding $1500 for use of the song in her documentary.  She paid the fee but is now challenging Warner Music’s copyright claim in court. 

While only allegations, her complaint seeking a determination that the song is actually in the public domain illustrates the song’s origins and complicated background.  To summarize the history generally, the melody was authored about one hundred and twenty-two years ago by sisters Patty and Mildred Hill as part of the song “Good Morning to All.”  Sometime thereafter, the melody (or a slightly altered version) was put to the lyrics that we all know today and the tune was copyrighted in 1935.  In 1988, Warner Music acquired the copyright for a reported $25 Million.  Warner maintains its copyright does not expire until 2030 which, if true, translates into roughly $30 Million more in royalties. 

According to Ms. Nelson’s attorney a decision on the scope of copyright protection is expected soon.  But, with appeals, it could be a while before the fat lady truly sings.  When she does, what if anything will she have to pay to sing the very song in question?

DISCLAIMER: The information provided is for general informational purposes only. This post is not updated to account for changes in the law and should not be considered tax or legal advice. This article is not intended to create an attorney-client relationship. You should consult with legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.

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