21 June 2008
Did you know birthday parties were not common until the 1830s, and even then kids celebrating kids’ birthdays only emerged between 1870 and 1920? Now this is a song many of us hear and sing a few times a year. It is also a song notorious in copyright circles since it generates roughly $2M/year for a subsidiary of Warner Music. Robert Brauneis of GWU Law School took the trouble to dig into the history of the song and found some surprises.
“Happy Birthday to You” is the best-known and most frequently sung song in the world. Many – including Justice Breyer in his dissent in Eldred v. Ashcroft – have portrayed it as an unoriginal work that is hardly worthy of copyright protection, but nonetheless remains under copyright. Yet close historical scrutiny reveals both of those assumptions to be false. The song that became “Happy Birthday to You,” originally written with different lyrics as “Good Morning to All,” was the product of intense creative labor, undertaken with copyright protection in mind. However, it is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application.
The case turns out to be complicated in a way that will seem all too familiar to anyone who has tried to unravel a copyright history. The difference here is that the object of this copyright is so familiar to us all.
“Happy Birthday to You” is probably one of the few songs that people in the last two generations learned through live performances in family or community settings, and many of the others were likely children’s songs – “Twinkle, twinkle, little star” and the like – that they no longer sing or hear as grown-ups. Thus, for many people — and you, dear reader, should consider whether you are among them — “Happy Birthday to You” is the only secular song passed down through an oral folk song tradition and still sung in adulthood. No wonder it’s a surprise to find that the song is not a folk song of unknown origin. But it’s not.
The article (hat tip to Andrew Sullivan) is accompanied by an impressive web page of documentation, a reminder that we need to find ways to help academics build this kind of record in the humanities as well as the sciences.