A birthday that involves copyright infringement is an...Unhappy Birthday
Unfortunately, a series of recent legal rulings have forced us to suspend our campaign. In 2015, Time Warner's copyright claim to “Happy Birthday” was declared invalid. In 2016, a settlement was announced that calls for a judge to officially declare that the song is public domain.
This is horrible news for the future of music. It is horrible news for anybody who cares that creators, their heirs, etc., are fairly remunerated when their work is performed. What incentive will there be for anybody to pen the next “Happy Birthday” knowing that less than a century after their deaths — their estates and the large multinational companies that buy their estates — might not be able to reap the financial rewards from their hard work and creativity?
We are currently planning a campaign to push for a retroactive extension of copyright law to place “Happy Birthday,” and other works, back into the private domain where they belong! We believe this is a winnable fight. After all, copyright has been retroactively extended before! Stay tuned! In the meantime, we'll keep this page here for historical purposes.
—“Copyrighteous“ Benjamin Mako Hill (2016-02-11)
Did you know Happy Birthday is copyrighted and the copyright is currently owned and actively enforced by Time Warner?
Did you know that if you sing any copyrighted song:
...at a place open to the public
...or among a substantial number of people who are not family or friends
You are involved in a public performance of that work?
Did you know an unauthorized public performance is often a form of copyright infringement?
The melody for Happy Birthday was first penned by two sisters from Kentucky, Mildred J. Hill and Patty Smith Hill. The song was called Good Morning to All, but bore the recognizable melody. The tune was first published in 1893 in the book Song Stories for the Kindergarten. The melody has since passed into the public domain, and is safe to hum in public without permission.
While it is not entirely clear who first wrote down the words for Happy Birthday, it showed up in a few places before Jessica Hill (another Hill sister) was able to demonstrate undeniable similarities between Good Morning to All and Happy Birthday and to secure the copyright to the song.
Working with the Clayton F. Summy Publishing Company, Jessica Hill published and copyrighted Happy Birthday in 1935. While the copyright should have expired in 1991, copyright has been extended repeatedly over the last quarter of the twentieth century and the copyright for Happy Birthday is now not due to expire until at least 2030.
The Clayton F. Summy Company is no longer independent, but, through a chain of purchases, the copyright for Happy Birthday To You lies securely in the hands of the Time Warner company. Happy Birthday's copyright is licensed and enforced by ASCAP, and the simple little ditty brings in more than USD $2 million in annual royalties.
For more information on the history of the tune, lyrics, and copyright status, check out these resources:
Update: This article by law professor Robert Brauneis has raised some important questions about the history of Happy Birthday. That said, copyright in the song continues to be enforced and Warner Brothers continues to collect more than $2 million each year in royalties. Until we hear a judge rule on Brauneis's suggestions, we'll continue to give Warner and the market the benefit of the doubt.
According to United States copyright law in United States Code, Title 17 §106, authors of works such as musical compositions have the exclusive right "to perform the copyrighted work publicly." In United States Code, Title 17 §101, the law defines publicly performing a work as "to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered."
Additionally, United States Code Title 17, §110(4) states that singing the song among a group of people "without any direct or indirect commercial advantage" will not constitute infringement either. But keep in mind: "indirect commercial advantage" is very broad. Courts have found that restaurants, camps, and other venues benefit indirectly from performances of songs like Happy Birthday. Unless the song has been licensed in these situations, it's infringement.
This means that if you sing Happy Birthday to your family at home, you're probably not committing copyright infringment. However, if you do it in an restaurant — and if the restaurant hasn't already worked out a deal with ASCAP — you may be engaging in copyright infringement.
The best way to stop infringement is to tell the authorities and the owners so that they can follow up and arrange for a license and for royalties to be paid. Licenses for Happy Birthday are controlled by ASCAP. While monetary royalties will be negligible for a single restaurant performance, it is the principle that is at stake.
If you have seen someone singing Happy Birthday in a restaurant, a park, or at a school, you should tell ASCAP so that they can arrange for a license. If you are an offender, you should apologize and offer to pay whatever is due — a nickel, a quarter, a dollar — whatever ASCAP demands.
There is an overwhelming amount of copyright infringement of Happy Birthday. Let's right the balance and tell ASCAP about every one of these violations!
There are many ways to get in contact with ASCAP:
ASCAP - New York
One Lincoln Plaza
New York, NY 10023
It would also be a good idea to keep the song's owner — Time Warner — in the loop. Here is their contact information:
Time Warner Inc.
One Time Warner Center
New York, NY 10019-8016
If you're going to send a message, here's a sample letter. (Before sending such a letter, you should know that some restaurants, nightclubs, etc., pay for blanket ASCAP catalogue licenses that might exempt patrons from copyright liability for singing during dinner.) You'll want to modify yours to include correct details on the infringement:
Dear ASCAP, The copyright status of "Happy Birthday To You" and the law related to public performances of copyrighted works have recently been brought to my attention. I am very concerned by the public's apparent disregard for copyright law demonstrated by rampant infringement of "Happy Birthday To You." It is with this in mind that I wish to bring to your attention a recent unauthorized public performance: -->> WHEN (e.g., December 10, 2004) -->> WHERE (e.g., at the Vol De Nuit at 148 West 4th Street in New York) -->> WHO (e.g., a group of patrons and the barstaff) I hope that you are able to quickly follow up on this and to enforce your copyright and extract the necessary royalties or licenses from the offenders. It is, in part, because of your lax and selective enforcement of your copyright that most people do not realize that "Happy Birthday To You" is even copyrighted at all. In the event that you choose to continue selectively enforcing the copyright in "Happy Birthday To You," for whatever reason, please consider asking Congress to change copyright law to reflect the way that most people view and interact with copyrighted works such as "Happy Birthday." Sincerely yours, -->> YOUR NAME -->> YOUR ADDRESS
Unhappy Birthday is a grassroots project run by citizens who are outraged by rampant copyright infringement in today's society — particularly in relation to the song Happy Birthday.
You can support us by buying overpriced items in the official Unhappy Birthday store.
Our president is Raymond Ty. You can get in contact with our leadership by emailing our copyrighteous spokesman — Benjamin Mako Hill — at email@example.com