Happy Birthday (Copyright on Joplin's "Silver Swan")

Date: 22 May 2003 09:57:37 -0700
Newsgroups: rec.music.ragtime
Size: 8,594 bytes

This is in reply to a reference to "Happy Birthday" in the now closed
thread:
Group: rec.music.ragtime
Subject: Copyright on Joplin's "Silver Swan"
Date: 2003-03-14 22:42:14 PST
Happy Birthday a.k.a. Good Morning to All
editorial by J. Byron, May 2003
There is a 1935 copyright registration for Happy Birthday, but the
melody "Good Morning to All" was published in 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.
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.
"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)
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) That "version" of the "birthday" melody may suffice for some
people. (The law of other countries might affect the status outside
the U. S.)
Allegedly, after the Hill's publication of "Good Morning to All"
Robert Coleman [and/or possibly others] sang the "birthday" lyrics
with the "Good Morning to All" melody. Later the "Happy Birthday"
lyrics combined with the Hill's published melody showed up on stage.
The Hill family allegedly won a 1934 law suit granting them the 1935
copyright mentioned endlessly on the Web. (Which does not affect
today's public domain status of "Good Morning to All.")
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,
melodically "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 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
registration for say, f# 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.)
In summary, 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. One lawyer's
site cites http://laws.findlaw.com/2nd/947867.html - a similar
situation. However, adding an original 8-line verse to a pre-existing
song is more substantial than changing 2 words of a song!
Searching further, I found Katzmarek Publishing, 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.) The Web page owner/publisher told me via email,
that they know they would lose any challenge to his claim.
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)"
- http://members.aol.com/katzmarek/pdmusic.htm
The words "Good Morning" were substituted with "Happy Birthday" by
others than the authors of "Good Morning to All." *Additional
alternative substitutions were also published. (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, melodically "Happy
Birthday" and "Good Morning to All" are identical.)
In the 1920's Robert Coleman published the "Happy Birthday" variant in
compilations of his own. One such example 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 Apr28, #A1068883, renewed 7Dec55, #R160405 Gospel
Trumpet Co (PWH)]
It is Mr. Katzmarek's belief that because the "Happy Birthday" variant
was published in these songbooks without copyright notice (no author
was stated) that it became public domain upon publication under the
1909 copyright law. (Reportedly, some legal experts and producers
agree, but Warner [the copyright holder] apparently disagrees.) It is
curious that Warner doesn't challenge Katzmarek's regarding his
claims.
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.)
These sites also have the Coleman songbooks in their archives:
http://archives.twu.ca/hymnlist.htm
http://www2.bju.edu/resources/library/catalogs/american_hymn/hl_1921_40.html
http://www.swbts.edu/libraries/bowld/thadroberts.shtm
After Coleman's publication, the "Happy Birthday" variant showed up on
stage. The Hill family allegedly won a 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 be somewhat
at odds.
Sources for "Good Morning to All" sheet music:
http://www.pdinfo.com/rp/R002152.htm
http://music.netstoreusa.com/songs/7005/HL00502604~958965.shtml
This page offers an mp3 sample of "Good Morning to All:
http://mac3.a-cappella.com/shop/product_information.asp?number=2115C&aitem=1145
Other editorials about "Happy Birthday"
http://www.attachemag.com/archives/01-02/story2/story2.htm
http://www.snopes.com/music/songs/birthday.htm
The "Classical Archives" has a Happy Birthday midi w/variations:
http://www.classicalarchives.com/encores.html
Copyright and public domain in the U. S.:
http://www.unc.edu/~unclng/public-d.htm
http://www.pdinfo.com/source/N374339.htm
http://www.copyright.gov/faq.html
Public domain research services:
http://www.musicreports.com/ppl.asp
http://www.pubdomain.com
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 use/misuse.
My own contribution:
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.
© 2003, J. Byron, but dedicated to the public domain.
if you don't like that...
Mer-ry <your holiday here> to You!
Mer-ry <your holiday here> to You!
Mer-ry <your holiday here> Dear Fri-ends
Mer-ry <your holiday here> to All.