Exposing the Happy Birthday story

Date: 29 Jun 2003 13:06:45 -0700
Newsgroups: alt.religion.christian
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Exposing the Happy Birthday story:
An editorial by J. Byron, May 2003, rev. June 2003
In this article, I attempt to answer three questions: 1 - What is that
song Good Morning to All, and how does it relate to Happy Birthday to
You? 2 - Is the melody to Happy Birthday to You public domain? 3 - Are
the lyrics to Happy Birthday to You also public domain? There are many
references to Happy Birthday on the Web. Most warn you of the
copyright claim on it, and that the current owners rabidly defend it.
Many of these "editorials" do not tell you about the song Good Morning
to All - and the few that do, don't tell you about its undeniable
legal status. Is this deliberate, or just ignorance of the facts? I
don't know. Two such examples are an article at Attaché Magazine
<http://www.attachemag.com/archives/01-02/story2/story2.htm> and the
commonly cited article at snopes.com
<http://www.snopes.com/music/songs/birthday.htm>. In addition, some
articles may unintentionally present inaccurate information. An
article posted at lawyers.com
<http://www.lawyers.com/davidrellis/articles.jsp> incorrectly states
that Good Morning to All was written in 1895 but unpublished. That
assertion is untrue, and makes an important legal difference.
There is a 1935 copyright registration for Happy Birthday, but the
melody Good Morning to All was formally published in 1893 as part of a
collection, registered in October 1893, and is public domain by U. S.
statute. (you just can't use the "Happy Birthday" lyrics in public
without paying) However, one site listed in this editorial claims
possession of some early publications that nullify the copyright to
even the lyrics.
Good Morning to All [a.k.a. the birthday melody] included in:
Song Stories for the Kindergarten, pub. 1893
Song Stories for the Kindergarten, revised ed., pub. 1896
[and apparently other pre-1923 editions]
Words: Patty Hill (-1946) Music: Mildred Hill (-1916)
Good morning to you,
Good morning to you,
Good morning, dear children,
Good morning to all.
The song Good Morning to All - from which Happy Birthday was allegedly
derived - is free to use (words and music) by U. S. federal statute.
(Published before 1923, and furthermore published before 1909) Take a
look at Lolly Gasaway's PD chart
<http://www.unc.edu/~unclng/public-d.htm>, or Cornell University's
expanded chart <http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm>.
That version of the birthday melody may suffice for some people -
instrumentalists in particular. Also note that titles cannot be
protected by copyright, and no unique or proper names are involved.
Naming an instrumental CD track Good Morning to All a.k.a. Happy
Birthday to You should be legal. (The law of other countries might
affect the song's status outside the U. S.)
Allegedly, after the publication of Good Morning to All in the Hill's
songbook Song Stories for the Kindergarten, Robert Coleman, and
others, published the "birthday" lyrics with the Good Morning to All
melody. In the 1930's, the "Happy Birthday" lyrics combined with the
Hill's published melody showed up on stage and in singing telegrams.
The Hill family allegedly won a 1934 lawsuit for infringement. In 1935
the Hill family registered the "Happy Birthday" copyright mentioned
endlessly on the Web. (Which does not affect today's public domain
status of Good Morning to All.) Two sources for Good Morning to All
sheet music are PD Info <http://www.pdinfo.com/rp/R002152.htm> (a
small studio, that also sells sheet music reprints) and NetStoreUSA
<http://music.netstoreusa.com/songs/7005/HL00502604~958965.shtml>
which offers Good Morning to All as part of a songbook. In addition,
Google <http://www.google.com> or Altavista <http://www.altavista.com>
might list other sources, or local music dealers might be able to
order a copy. Mainely A Cappella
<http://mac3.a-cappella.com/shop/product_information.asp?number=2115C&aitem=1145>
currently boasts an mp3 sample of Good Morning to All as part of their
On the Good Ship Lollipop CD. (There is also a very simple midi
example on PD Info's "G" page.)
Is the melody to Good Morning to All the same as the Happy Birthday
melody in a legal sense? Except for the splitting of the first note in
the melody Good Morning to All to accommodate the two syllables in the
word hap-py, musically Happy Birthday and Good Morning to All are
identical. Precedence (regarding works derived from public domain
material, and cases comparing two similar musical works) seems to
suggest that the melody as used in "Happy Birthday" would not merit
additional legal protection for one split note. (As separated from the
lyrics themselves.) A contact I made via the Web, claimed that someone
at Warner-Chappell <http://warnerchappell.com> acknowledged this much
to him by phone. It would be the reader's own responsibility to verify
that.
Strip away the public domain material from the Happy Birthday melody
and what do you have? One note - actually half a note. (Mail in your
copyright registration for the note f# for example, and see what you
get back ;-) Does the split note transform the piece in some
substantially creative way? Not in my view. The split note is a
natural consequence of the lyric change, and that split note is not
original in that there are many lyrics that would result in the same
splits. It is my view that you cannot copyright the metric structure
of a lyric (especially within a single measure) anymore than you can
copyright a common chord progression. (Set both versions of the melody
in tremelo and they look identical.) If in doubt, just use a dotted
eighth note/sixteenth note pair, rather than two eighth notes. The
Classical Archives has a midi of Happy Birthday, with variations, on
their Encores <http://www.classicalarchives.com/encores.html> page.
Search for more midi examples using MusicRobot
<http://www.musicrobot.com>.
As asserted in this article, many people are unaware that the public
domain status in the U. S. of the melody from Good Morning to All is
not in question. Many of those who do know about the public domain
status of Good Morning to All nevertheless believe that splitting the
first note of the melody as was done for Happy Birthday would merit
protection and attract Warner's attention. My limited understanding of
the law suggests otherwise, and if my Web contact was correct, the
copyright owner acknowledges the melody to Happy Birthday as public
domain.
Whether or not changing the words "Good Morning" to "Happy Birthday"
should be protected by copyright is a different matter. Although I
could be uninformed, I do not know of any case brought by Warner in
regard to Happy Birthday to You. They have however used cease and
desist letters. An interesting case involving Warner, not related to
Happy Birthday is Sanga Music v. EMI Blackwood Music
<http://laws.findlaw.com/2nd/947867.html>. However, adding an original
8-line verse to a pre-existing song is more substantial than changing
2 words of a song! Of course, anyone is free to write their own lyrics
to the music of Good Morning to All. Here is one example written by
myself:
Mer-ry Christ-mas to You!
Mer-ry Christ-mas to You!
Mer-ry Christ-mas Dear Fri-ends,
Mer-ry Christ-mas to All.
Searching further, I found Katzmarek Publishing
<http://members.aol.com/katzmarek/pdmusic.htm>, a music publisher
specializing in public domain music who claims that he and others have
publications of "Happy Birthday" - with the lyrics, that are not
covered by the 1935 copyright. (Of course there is no public comment
by Warner on this.) Mr. Katzmarek told me via email that he believes
Warner knows that their copyright on Happy Birthday to You could get
ruled invalid in a court of law, and therefore the documentation he
sells acts as sort of a legal shield.
He states on his Web page: "Happy Birthday Document (proving that it
is public domain.) A 1935 copyright is invalid according to us, double
your money back if we are wrong. (Many people have been ripped off by
this dilemma)"
The Katzmarek reprints indicate that the words "Good Morning" were not
substituted with the words "Happy Birthday" by the authors of Good
Morning to All, they were substituted by other people. (Additional
alternative substitutions were also published.) As I previously
stated, except for the splitting of the first note in the melody Good
Morning to All to accommodate the two syllables in the word hap-py,
musically Happy Birthday and Good Morning to All are identical.
Starting in the 1920's, Robert Coleman published the "Happy Birthday"
variant in compilations of his own. One such example that includes
Happy Birthday to You is: The American Hymnal, Robert H. Coleman,
1933. A second example NOT by Coleman is: Children's Praise and
Worship, Gospel Trumpet Company, 1928. [Children's Praise And Worship
ed Andrew Byers, Bessie L Byrum & Anna E Koglin, registered 7Apr28,
#A1068883, renewed 7Dec55, #R160405, Gospel Trumpet Co (PWH)] Several
of Coleman's publications are archived at Bob Jones University
<http://www2.bju.edu/resources/library/catalogs/american_hymn/hl_1921_40.html>
and Southwestern Baptist
<http://www.swbts.edu/libraries/bowld/thadroberts.shtm>. In addition,
the Library of Congress <http://www.loc.gov/> might also have his
publications archived.
It is Mr. Katzmarek's belief that because the "Happy Birthday" variant
was published in these songbooks without copyright notice (and no
author was stated) that it [any original authorship] became public
domain upon publication under the 1909 copyright law. The 1909
Copyright Act required that a proper copyright notice be affixed to
any published copies, and also required registration of the material.
(Reportedly, some legal experts and producers agree, but Warner [the
copyright holder] apparently disagrees.) It is curious that Warner
doesn't challenge Katzmarek regarding his claims. A more recent case
often cited is Bell v. Combined Registry Co., 536 F.2d 164 (7th Cir.
5/14/1976) <http://www.fleurdelis.com/combinedregistry.htm>, cert.
denied 429 U.S. 1001, 97 S.Ct. 530, 50 L.Ed.2d. 612 (December 6, 1976)
although it deals with different issues than presented in the Happy
Birthday situation.
An interesting earlier songbook noted by Mr. Katzmarek is: [the]
Golden Book of Favorite Songs, Chicago, 1915. It includes the song
Good Morning to All printed with the alternate title: "Happy Birthday
to You" - however the "Happy Birthday" lyrics are not actually printed
along the staff. (There could be even earlier publications of the
lyrics in some library.)
In the 1930's, the "Happy Birthday" lyrics combined with the Hill's
published melody showed up on stage and in singing telegrams. The Hill
family allegedly won the 1934 lawsuit resulting in the 1935 copyright
mentioned endlessly on the Web: "Happy Birthday to You was copyrighted
in 1935 and renewed in 1963. The song was apparently written in 1893,
but first copyrighted in 1935 after a lawsuit (reported in the New
York Times of August 15, 1934, p.19 col. 6)" The federal statutes and
one court's 1934 opinion seem to present a conflict in determining
whether or not Happy Birthday to You is public domain:
The original music to Happy Birthday to You was published as Good
Morning to All in 1893 and is securely public domain. The Hill sisters
are credited with authoring Good Morning to All. However, according to
The Book of World Famous Music by James Fuld, the 1858 song Happy
Greetings to All is very similar to the Hill's song. Also in 1858, a
similar tune Good Night to You All was published. Therefore, Good
Morning to All might not have been a completely original song even in
1893 - which would be consistent with folk music. Other [unknown]
people adapted the Happy Birthday lyrics to the song, a few publishers
included it in their compilations (songbooks) and others started using
it in plays and singing telegrams, while Good Morning to All was still
under copyright protection. The song became popular. The Hill family
sued for infringement and won. The next year, a copyright registration
was filed for the Happy Birthday version of the song. That copyright
is now owned by Warner-Chappell/Summy-Birchard. However, just because
a copyright is registered doesn't mean it's valid. A copyright
registration is only prima facia evidence. Just because someone
threatens to sue doesn't mean they would win. One lower court's 1934
ruling couldn't be binding on the whole country, much less the world.
Under the U. S. law of 1909, the effective date of copyright is the
date of first publication. The U. S. Copyright Office states: "The
copyright in the work of authorship immediately becomes the property
of the author who created the work. [The Hills did not create the
Happy Birthday to You version.] Only the author or those deriving
their rights through the author can rightfully claim copyright." There
is proof that the song was published as Happy Birthday to You at least
by 1915, which is prior to the public domain mark at 1923. Good
Morning to All was not public domain in 1915, but it is now. Also,
according to the 1909 Copyright Act, publication without notice
forfeited the copyright for the publications in the 1920's. A
copyright registration dated 20 years after publication is not valid
under the 1909 Copyright Act. That would seem to indicate that the
whole song is now in the public domain.
In summary and in answer to my three questions asked in this article,
Good Morning to All is public domain and free to use, even for
commercial use. The Happy Birthday to You melody is probably the same
as the Good Morning to All melody in a legal sense. Happy Birthday to
You (with the lyrics) might be public domain.
My own comments do not constitute legal advice in any way. I am not a
lawyer. This is the result of my own personal study. I accept no
liability resulting from the use or misuse of my article. This is not
an endorsement of any link(s) in this editorial. For more information
on what material is public domain in the United States, refer to Lolly
Gasaway's PD chart <http://www.unc.edu/~unclng/public-d.htm>. Read the
copyright basics <http://www.copyright.gov/circs/circ1.html> at the U.
S. Copyright Office's Website, and freely access recent case law at
Findlaw.com <http://www.findlaw.com/casecode/>. The Nolo book The
Public Domain <http://www.pdinfo.com/source/N374339.htm> is an
informative resource, written by an attorney. Before using any tune
commercially, it is best to check with a lawyer, or research group
such as Public Domain Report <http://www.pubdomain.com> or Music
Reports <http://www.musicreports.com>, which may or may not agree with
the opinions in this article.