For most of a century, the most frequently sung song in the English language was, according to its corporate owner, illegal to perform in public without a licence. "Happy Birthday to You" — 25 notes across four lines, known by heart on every continent — sat under copyright claimed first by the Clayton F. Summy Company and ultimately by Warner/Chappell, the publishing arm of a major music group, which by the 2010s was collecting an estimated two million dollars a year from it. Film-makers paid five-figure sums to include a birthday scene; restaurant chains invented their own clapping chants so waiters would not perform a copyrighted work; documentary crews cut the song and dubbed in "For He's a Jolly Good Fellow", which is safely ancient. All of it, a federal court eventually concluded, rested on a copyright that did not cover the song at all.
The melody was written in Louisville, Kentucky, by two sisters: Mildred J. Hill, a musician, and Patty Smith Hill, a pioneering kindergarten teacher. Their 1893 songbook Song Stories for the Kindergarten opened with "Good Morning to All" — same tune, different words, designed for teachers to greet small children. Nobody knows precisely who bolted the birthday lyrics onto the melody; they simply appeared, in print by the early twentieth century, the way folk words do. That anonymous graft became the problem and the goldmine: the tune was the sisters', the birthday words were effectively everybody's, and the eventual copyright registrations — filed by the Summy Company in 1935 — covered, on close inspection, specific piano arrangements rather than the song itself.
Two million dollars a year
Close inspection took eighty years to happen. The 1935 registrations were treated as covering the whole work, and under successive extensions of US copyright terms the claim was projected to run until 2030. Warner acquired it in 1988 when it bought Birchtree Ltd, Summy's successor, for a sum reported around $25 million — the birthday song being the crown jewel. The licensing machine then ran quietly for decades: roughly $2 million a year, by common estimate, from films, television, adverts, singing telegrams and greetings cards. The absurdity became a running cultural joke — the documentary The Corporation used it as a case study in the enclosure of the commons — but paying was cheaper than litigating. That changed in 2013, when Jennifer Nelson, a film-maker making a documentary about the song itself, was quoted $1,500 for the privilege and sued instead, her company Good Morning to You Productions leading a class action.
Discovery did the damage. The plaintiffs' lawyers unearthed a 1922 songbook containing the birthday lyrics printed without any copyright notice for them, and pressed the point that Summy's 1935 filings covered piano arrangements only. In September 2015, US District Judge George H. King ruled that Warner/Chappell had never held a valid copyright in the "Happy Birthday" lyrics — the company owned, at most, some specific arrangements. Rather than fight on, Warner settled in 2016: it agreed to pay $14 million to those who had bought licences, and the court declared the song to be in the public domain in the United States. In the European Union, the last copyright protections lapsed at the end of 2016. The film-makers' lawyers, having freed one song, went on to challenge the copyrights claimed over "We Shall Overcome" and "This Land Is Your Land".
The moral of a simple song
The Hill sisters themselves are a poignant footnote. Mildred died in 1916, long before the money; Patty lived until 1946, respected as an education reformer — she helped develop the kindergarten movement in America — and reportedly more bemused than enriched by the song's spread. A share of the historical royalties did flow to a charitable foundation connected to the family, one of the few redeeming threads in the tale.
"Happy Birthday" remains a perfect case study, cited in law schools and pub quizzes alike: the most performed song in English, per Guinness World Records one of the most recognised songs in the language, generated fortunes for decades on the strength of paperwork nobody had actually read closely. The song's own history was its acquittal — a tune written to say good morning to kindergartners, freed by a judge because the words everyone actually sings belonged to no one. Sing it in a restaurant tonight; the waiters, at last, are legally allowed to join in.
Quiz nuggets
- The "Happy Birthday" melody comes from "Good Morning to All", written by sisters Mildred and Patty Hill for an 1893 kindergarten songbook.
- Warner/Chappell collected an estimated $2 million a year in licensing fees for the song.
- Film-maker Jennifer Nelson's 2013 class action led Judge George H. King to rule in September 2015 that Warner's copyright was invalid.
- Warner settled in 2016 for $14 million, and "Happy Birthday" was declared public domain in the US.
- The winning evidence included a 1922 songbook printing the birthday lyrics without a copyright notice.