Surprising Aspects of Copyright Laws

How is it possible that the song “Happy Birthday to You” is Still Under Copyright?

The complexities of copyright law can be confusing and even, at times, absurd. At it turns out, the song “Happy Birthday to You,” a universal tune used to commemorate birthdays from early childhood through old age, is still considered private property. A recent federal lawsuit has been filed on behalf of  group of independent artists stating that they have proof that the copyright to the song is no longer applicable. The suit alleges that a songbook that is almost a century old proves that the song’s copyright, first issued in 1935, is no longer valid.

Some of the difficulties about “Happy Birthday” derive from its odd publishing history; it was first published in 1893 under the title “Good Morning to All” written my Mildred and Patty Hill, two sisters in Kentucky. By the early 1900s, variations of the song appeared with birthday themes, until eventually the song became as well known as any folk tune.

It is expected that the judge involved may rule on the case in less than a month. If the judge rules that the copyright on the song is no longer valid, Warner Music Group, holder of the rights to the song, will lose millions of dollars in licensing fees.

The case illustrates the difficulties inherent in copyright laws which may extend ownership well beyond the lifetime of the composer and, as in this case, well into a time period in which it appears to be in the public domain. As a general rule, copyright protection for works created after January 1, 1978 extends for the lifetime of the author plus 70 years. For works published before 1978, there are a number bewildering exceptions. Variables for copyrights depend on several factors, including:

  • Whether and when publication has actually taken place
  • Date of first publication
  • Whether copyright has been renewed (if the work was published prior to 1978)

Strange as it seems, until the judge rules on the copyright questions surrounding “Happy Birthday,” just about all of us have infringed on copyright laws and could, theoretically, be held accountable.

Because of the complicated nature of copyright laws, if you intend to copyright original material of any kind, you would be wise to consult with a well-informed attorney experienced in copyright law. Please don’t hesitate to contact Thomas M. Lancia, providing clients in New York and New Jersey with excellent service. We can be reached at 212.964.3157.