An unhappy ‘Birthday’ suit

LOS ANGELES — For generations, “Happy Birthday” — a tune sung to almost every American every single year of his or her life — has made millions of dollars for its aggressive copyright owners.

Although the song that was originally written for kindergartners is free to sing at your dinner table, any performance deemed public could cost you money or a legal headache.

In the 1930s, Irving Berlin had to pay up after using “Happy Birthday to You” in a musical.

In the 1980s, the copyright holder contemplated pursuing Congress for singing “Happy Birthday” to President Ronald Reagan.

After the rights to the song were acquired by Warner Music Group in 1988, proposed fees for the Girl Scouts prompted an outcry. The organization responsible for collecting royalties quickly said it was all a misunderstanding. Singing around the campfire remained free.

Some have argued the song isn’t bound by copyright protections at all. And now new evidence in a 2-year-old copyright lawsuit could end Warner’s decades-old grip on the ubiquitous ditty. Or not. Warner’s attorneys counter that they can prove the copyright still belongs to their clients until it expires in 2030.

The case, which was argued Wednesday before a federal judge in Los Angeles, pits the publishing arm of New York-based Good Morning to You Productions, which is making a documentary about the song, against Warner Music Group.

At issue is whether the 1935 copyright on the song is valid, or whether the original author allowed the tune to drift into the public domain as early as the 1920s.

For months, attorneys for the plaintiffs have argued that the song’s original author allowed the public to perform the song and failed to assert any copyright over it.

Then, a little over two weeks ago, they received what they say is a “smoking gun” that proves “Happy Birthday to You” has been in the public domain for decades: a 1922 songbook that publishes the tune and its lyrics without any copyright notice.

If the plaintiffs are ultimately successful, Warner could be on the hook for the millions of dollars in licensing fees that it has collected since 1988.

The story of this song begins in 1893 with a schoolteacher and her sister and a little-known tune that shares the same melody. Patty Smith Hill and Mildred J. Hill wrote the song for Patty’s kindergarten students, titling it “Good Morning to All.” Its original lyrics were: “Good morning to you/Good morning to you/Good morning, dear children/Good morning to all.”

The song evolved into the well-known birthday song, with lyrics by Patty Smith Hill, and became what the Guinness World Records book has said is the most widely sung song in the English language.

Today, it has secured a place not only in the canon of the American songbook, but also in the nation’s cultural fabric, becoming intertwined in hundreds of millions of private and public celebrations every year.

The fact that the birthday tune can’t be played or sung without permission has been fodder for cocktail party trivia, but for Warner Music Group, it means business. The company has been enforcing its copyright claim since it paid $15 million to buy Birch Tree Group, the successor to Clayton F. Summy Co., which owned the original copyright. Royalties on the song bring in about $2 million a year for Warner, according to some estimates.

As it stands, Warner can charge anyone who wants to sing or play “Happy Birthday to You” as part of a profit-making enterprise. That most often happens with stage productions, on TV, in movies, in ringtones or in greeting cards. But even those who want to sing it publicly as part of a business, such as restaurant owners giving out free birthday cake, technically have to pay to use the song.

The plaintiffs have argued that Patty Smith Hill allowed the public to use her song widely without asserting any copyright.

Among other things, they pointed to a 1935 Time article, which said Hill had “long ago resigned herself to the fact that the ditty had become the common property of the nation.”

The plaintiffs assert that though Warner owns the rights to a specific sheet music arrangement of the song, it does not own the song itself.

Warner attorneys disagree. They argued in an eight-page court document filed Tuesday that Jessica Hill, who had inherited part of Mildred Hill’s rights to the song, renewed the copyright to “Good Morning” in 1921, and that the “Happy Birthday” song was copyrighted by Summy with authorization from the family in 1935. Summy renewed the copyright in 1962, decades before Warner Music bought Summy’s successor company.

But attorneys for the plaintiffs believe their strongest evidence came via a copy of the 1927 edition of the songbook that was included in a cache of documents released by Warner’s defense team on July 13. Underneath the song’s title was a line too blurry to read, so the attorneys called around to libraries, seeking an original. They found it, and in small, neat lettering the book read, “Special permission through courtesy of The Clayton F. Summy Co.”

“(Warner) says Summy never authorized or knew about any prior publications with permission,” says Randall S. Newman, a New York attorney representing one of the plaintiffs. “This shows that that’s not true.”

After Newman found the original of the 1927 songbook, he ordered it, and another version from 1922 — on Amazon for about $3 each. Music that was published before 1923 is generally considered to be in the public domain.

Warner has filed a motion opposing the plaintiffs’ request for a judgment based on the new evidence, and Judge George H. King has given the plaintiffs a week to respond. A final ruling on the copyright issue could come within a few weeks, according to plaintiffs’ lawyers.

If the plaintiffs succeed, the trial case would proceed to a second phase to determine how much of the fees, if any, Warner would have to repay. Newman says the plaintiffs are prepared to argue that Warner knowingly hid the songbook.

A Warner spokesman declined to comment.

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(Times staff writer Christina Littlefield contributed to this report.)