28 July 2014

For whatever reason, there’s been a spate of social media interest in the copyright status of the song “Happy Birthday to You,” a subject that has long been covered in an article here on snopes.com. (In short, “Happy Birthday to You” has been in a copyright-protected status for several decades, and under current law it will remain so until the year 2030.) A number of readers have written to us in the last few days to tell us that our article is “wrong,” sending missives such as the following:

Your article about “Happy Birthday” is wrong. A documentary filmmaker has discovered that “Happy Birthday” is not protected by copyright, and Warner owes the world hundreds of millions for improperly collected royalties.

Most of the messages we receive along this line reference a more-than-year-old (June 2013) article from boingboing.net, which is little more than a brief summary of an earlier article published by techdirt, which is itself a summary of a 13 June 2013 class action lawsuit filed by a film production company seeking to overturn the copyright status of “Happy Birthday to You” and force the current rightsholder (Warner/Chappell Music) to return millions of dollars in improperly collected licensing fees.

As our article notes in its conclusion, legal scholars have in recent years identified a number of potential problems with Warner/Chappell’s claim to copyright ownership, among them that there is little or no evidence that one of the song’s putative composers, Patty Smith Hill, actually wrote the lyrics to the song; that the first authorized

publication of “Happy Birthday to You” bore an improper copyright notice (resulting in forfeiture of copyright protection); and that the copyright renewals filed in 1963 covered only particular arrangements of the song and not the song itself.

It is also true that Warner/Chappell’s claim to copyright ownership of “Happy Birthday to You” has not yet been challenged (and thus not yet successfully defended) in court, that irregularities in the song’s composition and ownership history might be grounds for invalidating Warner/Chappell’s copyright protection, and that the plaintiffs in the current class action lawsuit (or someone else) may someday prevail in overturning Warner/Chappell’s claim to copyright ownership.

However, it is not accurate to maintain that our article is “wrong,” as all the issues mentioned above are speculative in nature. As our article correctly states, the fact remains that “Happy Birthday to You” currently enjoys copyright-protected status: Warner/Chappell claims the copyright to the song through a documented chain of ownership, they collect millions of dollars in licensing fees for “Happy Birthday to You” every year, and anyone who makes commercial use of the song without proper license risks being liable for up to $150,000 in penalties for copyright infringement. Someone may or may not eventually succeed in challenging and invalidating Warner/Chappell’s copyright to “Happy Birthday to You,” but unless and until that happens, that popular song will remain in copyright-protected status until 2030.