Birthdays Can Be Expensive

Two days ago, the Canadian Press ran a story about a production company that decided to sue Warner/Chappell over the use of “Happy Birthday” in a documentary they were filming.  For those who aren’t in the know, Warner/Chappell owns the copyrights to the song.

The production company paid Warner/Chappell $1,500 for a licensing fee as well as sign an agreement to use the song in a scene or face a penalty of $150,000.

Most of us have grown up hearing countless renditions of “Happy Birthday” at birthday parties and in restaurants and other public  locations where someone is lucky enough to be celebrating another successful spin around the sun.  In restaurants, singing “Happy Birthday” is covered by a performing rights license (if they have one) or sung surreptitiously in the hopes that a notice of copyright infringement won’t be served on management or the restaurant’s owners.  In parks, “Happy Birthday” singers are taking greater risks of being caught and served with a notice (after all, aren’t gifts some sort of financial compensation as a result of the singing of “Happy Birthday?”).

Now, it’s one thing to have to pay a licensing fee (which is the fair thing to do when you use someone’s copyrighted material), but to have to sign an agreement to use the song or else risk being forced to pay 100 times the original licensing fee strikes me as adversarial.

Here’s how I see it, in catering terms (if I ran a catering business).

If John Doe hires me to cater a special event and pays me $1,500 in advance, the date is booked and the money is deposited to the bank.

If John Doe subsequently cancels his special event and doesn’t ask for a refund of the $1,500 (either partial or in full), then I’ve been the lucky recipient of a $1,500 donation to the success of my business.

That’s pretty straight forward if you ask me.

Now, let’s say I also had John Doe sign an agreement that stated he would have to pay a penalty of 100 times the contracted amount if he didn’t use my company to cater that affair, regardless of the reason for canceling.  Most reasonable people would say that reasonable person would refuse to sign such an agreement and they’d throw open the yellow pages in search of a new caterer.  And you know what?  They’d be right for doing just that!

So how is it that Warner/Chappell can get away with this?

Let’s take a look at the copyright issue.

Once upon a time there were two sisters from Kentucky named Mildred and Patty.  Mildred grew up to be a musical scholar of note and Patty became an influential educator who developed a method of teaching that was used in schools across America.

One fine day back in 1893, Mildred came up with the melody for the song that was originally known as “Good Morning To All.”  That same year, it was published in a songbook entitled, “Song Stories For The Kindergarten.”

Somewhere along the line, someone added a second verse to the sisters’ song, and when Robert H. Coleman published a songbook that included the song, right there with the original first verse was the “Happy Birthday” verse!  Well, one thing led to another, and before long, all sorts of Broadway musicals and businesses (Western Union being the first to use it as part of their singing telegrams in 1933) started using the song without paying the Hill sisters any money, and so a court case in 1934 became the final say on the matter.  Copyright was secured on behalf of the Hill sisters.

The Clayton F. Summy Company (a Chicago-based music publisher) published and copyrighted the song in 1935.  The copyright laws of the time allowed for an initial 28 year term with a second renewal term of another 28 years, which meant that the song should have fallen into the public domain in 1991.

But you know, laws never stay the same, and so when the Copyright Act of 1976 came into effect, the copyright protection was rewritten to cover 75 years from the date of publication (which, as you remember was 1935).  That put the copyright up to 2010.

But then, there was the Copyright Term Extension Act of 1998, and that added another 20 years to the copyright, so when all is said and done, copyright on “Happy Birthday” is going to keep on plugging along until 2030 … unless another amendment to some copyright act pops up along the way.

“But how did Warner/Chappell get a hold of the copyright?” you might ask.  As oftentimes happens in big business, companies acquire other companies over the years.

In the 1930s, Jack Sengstack bought the Clayton F. Summy Company, relocated the company to New Jersey and rebranded it as Birch Tree Ltd.

In another timeline, Chappell & Company was a music publishing company and instrument shop that was founded in 1811.  In 1987, Warner Brothers bought Chappell & Company.

In 1988, Warner/Chappell bought Birch Tree Ltd. and with the purchase of Birch Tree Ltd., came the copyrights to “Happy Birthday To You.”

And that’s where Warner/Chappell gets the chutzpah to expect people to pay big bucks to use “Happy Birthday.”  They have a legal right.

But you know, sometimes it’s important to ask another question: After all this time, is it really right to demand that people pay to use a song that’s been around for well over 100 years?

I mean, this is a song that almost fell into the public domain twice now (once in 1991 and again in 2010) were it not for changes in two copyright acts in the U.S.

Or are people missing another key part of the argument here?

Elyse Bruce


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