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'Happy Birthday' Hits Sour Notes When It Comes To Song's Free Use

Everyone knows how to sing "Happy Birthday to You." But performing the song in movies or on TV requires payment of sometimes hefty licensing fees. Now the song is at the heart of a lawsuit.
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Everyone knows how to sing

The Guinness Book of World Records calls "Happy Birthday to You" the most recognized song in the English language. But you'll rarely ever hear it on TV or in a movie.

Instead, you usually hear something that sounds sort of like the song, but not quite. In Disney's The Emperor's New Groove, for example, the characters sing: "Happy, happy birthday from all of us to you, we wish it was our birthday so we could party, too."

An episode of Community starts with the words "to you" being sung, followed by cheers and: "That was weird, how come we only sang the last two words? What happened to the 'happy birthday' part?"

Well, what did happen to the "happy birthday" part?

It turns out the publisher Warner/Chappell Music owns the copyright to the "Happy Birthday" song. That means that every time anyone wants to use the song, he must pay a licensing fee, sometimes as high as six figures.

But how did Warner/Chappell get the rights?

"This is where it gets complicated," says filmmaker Jennifer Nelson, laughing.

Very complicated.

Nelson is working on a documentary about the song. She paid for the rights to use it, and she's suing Warner/Chappell to get her money back, arguing it's part of the public domain — free for anyone to use.

The core of her case depends on the song's long, convoluted history and when it was copyrighted.

"In 1893," Nelson explains, "the Hill sisters, Mildred and Patty Hill, they were kindergarten teachers, and they wrote music for their students. And there was a song called 'Good Morning to All' and the melody from that song evolved and the lyrics kind of changed to 'Happy Birthday to You.' "

The Hill sisters, from Kentucky, wrote and got the copyright to the song's melody back then, more than 100 years ago.

After this, Nelson says, the song's publisher, the Summy Co., "copyrighted 'Good Morning to All,' and then later, sometime in the '20s, the 'Happy Birthday to You' lyrics were added to the melody, and Summy copyrighted that."

Summy later became part of a new company, and in the 1980s, Warner/Chappell bought that company — and the rights to the song — for $25 million. Since then, according to some estimates, Warner/Chappell has been collecting approximately $2 million a year in licensing fees.

In her lawsuit, Nelson challenges Warner/Chappell's claim to the copyright.

"You know, we don't feel that [the song] should belong to anybody at this point," she says. "It's over 100 years old, and it should be for the people."

Nelson and her lawyer, Randall S. Newman, argue that the copyright for the song — that's the tune and the lyrics — expired by 1921.

Warner/Chappell sees it differently. The company says the copyright that counts is one obtained in 1935, for arrangements of the song. If that's true, "Happy Birthday to You" will eventually go into the public domain — but not for 15 more years, in 2030.

Warner/Chappell did not respond to NPR's requests for comment.

If the company wins the suit, it can keep collecting licensing fees until the copyright expires. If Nelson and her lawyers win, the song will be in the public domain.

"I think it's going to set a precedent for this song and other songs that may be claimed to be under copyright, which aren't," says Newman.

As for Nelson, she jokes that if her lawsuit succeeds, "People will be so sick of the 'Happy Birthday to You' song, because everybody will get to use it, finally."

She hopes for a decision by the end of this summer.
Copyright 2015 NPR. To see more, visit http://www.npr.org/.

Transcript :

ARUN RATH, HOST:

The most recognized song in the English language - not a shocker - is the birthday song, according to the Guinness Book of World Records. But something that's weird - you may have noticed "Happy Birthday To You" isn't so popular in TV or movies. Birthdays on the screen are more often marked with songs that are not the birthday song, like this from "The Emperor's New Groove."

(SOUNDBITE OF FILM, "THE EMPEROR'S NEW GROOVE")

UNIDENTIFIED ACTORS: (As characters, singing) One, two, three, four. Happy, happy birthday from all of us to you. We wish it was our birthday so we could party, too.

RATH: Or you can be creative and self-referential in not singing "Happy Birthday To You," like on this episode of "Community."

(SOUNDBITE OF TV SHOW, "COMMUNITY")

UNIDENTIFIED ACTORS: (As characters) (Singing) To you.

(SOUNDBITE OF HORNS)

CHEVY CHASE: (As Pierce Hawthorne) That was weird. How come we only sang the last two words? What happened to the happy birthday part?

RATH: What did happen to the happy birthday part? Why couldn't they sing the whole song? Because they didn't want to pay. The music company Warner Chappell owns the copyright. That means every time anyone wants to use the song, they have to pay a licensing fee, sometimes as high as six figures. But how did they get to own "Happy Birthday To You"?

JENNIFER NELSON: This is where it gets complicated (laughter).

RATH: Very complicated. Jennifer Nelson is a filmmaker working on a documentary about the song. She paid for the rights to use it, and she's suing Warner Chappell to get her money back, arguing the song is part of the public domain, free for anyone to use. At issue here is the history of the song and when it was copyrighted.

NELSON: In 1893, the Hill sisters, Mildred and Patty Hill -they were kindergarten teachers, and they wrote music for their students. And there was a song called "Good Morning To All." And the melody from that song evolved, and the lyrics kind of changed to "Happy Birthday To You."

RATH: So it started off as - (singing) good morning to you - and then I guess however else the lyrics went.

NELSON: Yep. (Singing) Good morning, dear children. Good morning to all (laughter).

RATH: The Hill sisters of the copyright to the song's melody back then, over 100 years ago.

NELSON: Then Summy, the publisher, copyrighted "Good Morning To All." And then later, sometime in the '20s, the "Happy Birthday To You" lyrics were added to the melody, and the publisher Summy copyrighted that.

RATH: Then Summy became part of a new company, and in the '80s, Warner Chappell bought them and the rights to the song for 25 million. Since then, Warner Chappell has been charging Hollywood approximately $2 million a year in licensing fees.

NELSON: The price of the song isn't enough to really hinder you from making the film. It's enough to make you angry, but not enough to prevent you from doing it. So nobody's ever done anything about it.

RATH: That is, until now. Nelson and her lawyers argue that the copyright for the song - that's the tune and the lyrics - expired in 1921. Warner Chappell says the copyright that counts is the one obtained in 1935 for arrangements of the song. If that's true, the song will go into public domain eventually, just not yet.

NELSON: You know, we don't feel that it should belong to anybody at this point. It's over a hundred years old. It should be for the people.

RATH: NPR reached out who Warner Chapell, but they did not respond to requests for comment. If the music publisher wins, they can keep collecting licensing fees until that copyright expires. If Nelson wins, "Happy Birthday To You" will be in the public domain. Here's Jennifer Nelson's lawyer, Randall Newman.

RANDALL NEWMAN: I think it's going to set a precedent for this song and other songs that may be claimed to be under copyright which aren't.

NELSON: People will be so sick of the "Happy Birthday To You" song because every (laughter) - 'cause everybody will get to use it finally.

RATH: Nelson says they hope to get a decision by the end of this summer. Transcript provided by NPR, Copyright NPR.