“Happy Birthday to You”

About a decade ago, Jennifer Nelson was working in the trenches of reality television.

Jennifer NELSON: I was a producer at M.T.V., and I was working on a popular show called “My Super Sweet 16.” It was about lavish, over-the-top birthdays for wealthy kids. And they would spend hundreds of thousands of dollars on these birthday parties, and arrive in helicopters or, you know, have elephants on display.

Early on, she got a confusing mandate from her boss.

NELSON: My producer was like, “You can’t film anybody singing the Happy Birthday song — just don’t do that.” And I was like, “What do you mean? This is a show about birthdays and we can’t sing the Happy Birthday song?” Everybody on the crew always thought it was so dumb, but nobody really looked into it.

So, Nelson decided to look into it herself. And she found out something that blew her mind: The song — a song that you and I have sung hundreds, if not thousands, of times, a song that forms a critical part of an American ritual — it was the property of one of the world’s largest music publishers. To use it, her show would have to pay thousands of dollars in licensing fees.

NELSON: I just thought it was nuts! I was pissed, too. Like, doesn’t that song belong to everybody?

The more Nelson looked into the history of the world’s most familiar song, the more she realized that the story she’d been told about its ownership was questionable.

For the Freakonomics Radio Network, this is The Economics of Everyday Things. I’m Zachary Crockett.  Today: “Happy Birthday to You.”

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The American Society of Composers, Authors and Publishers — that’s ASCAP, for short — well, they once called it “far and away” the most popular song of the 20th century. But before the world knew Happy Birthday, the tune was just an obscure little ditty.  It came from the American heartland. 130 years ago, in Louisville, Kentucky, two sisters named Patty and Mildred Hill wrote songs for children — songs that were simple, repetitive, and easy to sing. Patty was a kindergarten teacher, and one of these songs in particular caught on with her students: it was called “Good Morning to All.” Patty and Mildred filed for a copyright on the sheet music in 1893 and printed it through a publisher named Clayton F. Summy.

Robert BRAUNEIS: The sisters were very conscious of copyright. So, no question: “Good morning to All” — with that combination of  the tune we know as “Happy Birthday to You” and the words “Good Morning to All” — that song was under copyright from 1893 ‘til 1949. 

That’s Robert Brauneis. He’s a professor of Intellectual Property Law at the George Washington University Law School. And in 2010 he published an article titled “Copyright and the World’s Most Popular Song.” It also covered some interesting history.

BRAUNEIS: Sometime during the 1890s “Good Morning to All” started being sung with the words “Happy Birthday to You.”

At the time, children’s birthday parties were a relatively new phenomenon. “Happy Birthday to You” became the song for the occasion.

BRAUNEIS: By the 1930s, basically everyone in the United States knew that melody and associated it with the “Happy Birthday to You” words. 

In 1935, the Clayton F. Summy Company printed multiple versions of “Happy Birthday to You.” And it registered its own copyright claims on the song, giving partial ownership to the Hill sisters.

BRAUNEIS: This is sheet music. And, so, this is not just the melody and the words. This is usually a piano accompaniment, with chords and basslines and the like. And at the time, I think, all they really thought that they were doing was copywriting the arrangements — which they could.

But if somebody creates a new arrangement of a very old song, that arrangement could be considered a new work that’s placed under copyright — even if the original melody is in the public domain.

BRAUNEIS: Pretty soon I think they realized that they could start charging for use of the song and nobody would challenge them! And that just became a little goldmine — anytime anybody sang the song for whatever reason. And these were in contexts that we would find odd today but were popular then. For example, Western Union had a singing telegram service. And, as you can imagine, “Happy Birthday to You” was a very popular singing telegram, and there were estimates that in the first five years it had been sung as a telegram a million and a half times.

The song appeared in dozens of movies and cartoons — like “Mickey’s Birthday Party” in 1942, which you’re hearing right now. By the 1970s, it was bringing in more than $75,000 a year in licensing fees. Summy’s assets changed hands a few times over the years. And in 1988 its parent company was sold to Warner Communications for $25 million dollars. As a part of the deal, Warner acquired the rights to 50,000 songs. But the real jewel of the catalogue was “Happy Birthday to You.”

BRAUNEIS: Many people were singing it in public and many people were incorporating it into movies and television shows and the like. And they were all paying a lot of money for that privilege.

Warner aggressively enforced the song’s copyright.

BRAUNEIS: For very large-budget movies the way that fee is negotiated is that you request permission to use “Happy Birthday to You” in your movie, and the owner of copyright sends you a sheet and says, “Well, what’s the budget for the entire movie?” You tell it, “Well, it’s $500 million.” And then they say, “Oh, well, $50,000 is not a very large fee in comparison to your full budget — so, let’s charge you $50,000.” 

And, anyone who wanted to sing the “Happy Birthday” song in public, for profit, was liable to pay anywhere from a few hundred to a few thousand bucks.

BRAUNEIS: And of course restaurant chains came up with alternative birthday songs to avoid the necessity for paying royalties for “Happy Birthday to You.”

Restaurants like Chuck E Cheese.

You’re a birthday star at Chuck E. Cheese,

You’re a special guest we all aim to please,

We say HAPPY!  You say BIRTHDAY!

HAPPY BIRTHDAY!  HAPPY BIRTHDAY!

But if a corporate entity like Chuck E Cheese was going to give up on using the original song that everyone knows, how could a single documentary filmmaker make a difference? That’s coming up.

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By the late 1990s, “Happy Birthday to You” was making Warner an estimated $2 million per year in royalties. Some of that came from Jennifer Nelson, the filmmaker. After learning about the copyright, she decided to make a short film called “Saving Happy Birthday.” And, of course, she needed to feature the song.

NELSON: I bought my own license for $1,500 to be able to use it.

In the course of her documentary research, Nelson came across that article by Robert Brauneis.

NELSON: He wrote this long article saying, if anybody challenged this copyright claim, they would surely win. He felt like their claim to the copyright was weak.

And yet nobody had ever challenged Warner’s copyright, which was thought to extend to the year 2030.  So, Nelson did something crazy.

NELSON: It was like, okay, I’m about to punch a gorilla in the face! They gonna blackball me or smash my kneecaps or something. 

Nelson decided to sue Warner over the copyright on “Happy Birthday to You.” A guy named Randall Newman became one of the lawyers on her team.

NEWMAN: As soon as I researched it, I knew it was going to be huge. The Hill sisters wrote the melody, you know, “Good Morning to All.” The question was: who wrote the lyrics?

Warner claimed that the sisters had also written the lyrics to “Happy Birthday to You” — and, thus, the copyright the sisters had sold applied to the entire song.  Jennifer Nelson and her lawyers disagreed.

NEWMAN: We claim that no one knows who really wrote them. They claim that the copyright covered the lyrics and the melody.  We say they’re just copyrights on the actual sheet music, on an arrangement.

NELSON: We scoured over 100 years of history. We did some archival research out in Kentucky where the Hill sisters are from, and went through their letters and paperwork and stuff.  

In 2013 the group filed a class action lawsuit against Warner, on behalf of people who had paid to license the song under the questionable copyright.

NELSON: I really felt like we were battling for everybody. every film, every T.V. show, every birthday party at Applebee’s.

In 2015, a federal judge ruled that Warner’s copyright claim on “Happy Birthday to You” was invalid — and the song was effectively liberated into the public domain. The following year, the court ordered Warner to distribute a total of $14 million to anyone who had paid to use “Happy Birthday to You” since 1949. For some of those claimants, that was a very big payday.

NEWMAN: One of them got, like, close to $1,000,000. You know, people think, “Oh, class action, you’re going to get $0.32.” No, these guys were getting a hundred thousand, some of these companies.

Newman didn’t do too shabbily either. His legal team was awarded more than $4 million dollars in fees. After the case, Newman liberated a few other popular songs that he believed had been wrongly copyrighted. He successfully challenged a copyright claim by The Richmond Organization on the gospel song “We Shall Overcome” — and in 2018, it went into the public domain. And Jennifer Nelson? Well, she got a little something, too.

CROCKETT: Did you get your $1500 back?

NELSON: I did.

CROCKETT: What did they do, send you a check in the mail?

NELSON: Yeah, I got a check. 

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For The Economics of Everyday Things, I’m Zachary Crockett. This episode was produced by Sarah Lilley, with help from Lyric Bowditch, and mixed by Jeremy Johnston. You can see Jennifer Nelson’s movie, “Saving Happy Birthday,” on our website.

NELSON + CROCKETT: Happy birthday, dear Jennifer Nelson/everyone. Happy birthday to you. 

CROCKETT: Nice.