Happy Birthday to You: Megahit Song May Enter Public Domain

Celebrating a birthday and singing “Happy Birthday to You” go together like, well, cake and ice cream – or, perhaps more accurately, copyright and money.

This quintessential song of celebration receives somewhere around $2 million per year in usage fees, making it one of the most lucrative pieces of music ever written.

Alas, all good things must come to an end. A pending settlement in a recent class action suit against Warner Chappell Music Inc. (“Warner”), which had held and actively policed the rights to this popular song since 1988, means “Happy Birthday to You” could soon be in the public domain.

To understand how we got here, you have to know where it came from.

The iconic eight-note melody was written by schoolteachers Mildred and Patty Hill in 1893 with the original lyrics “Good Morning to All.” It was not until the early 20th century that the lyrics had morphed from “good morning to all” to a new version as “happy birthday to you.” To further complicate the backstory, there seem to be disputes about who penned the lyrics that would become the quintessential song of birthday celebration. Regardless, after almost four decades since the “Good Morning to All” version, Jessica Hill, Mildred and Patty’s youngest sister, secured the copyright for the lyrics to the “Happy Birthday to You” version of the song. Although the copyright to the underlying melody had since passed into the public domain, the copyright to the new “Happy Birthday to You” lyrics has been used to collect royalty payments since 1949.

In 2013, after Warner charged a couple of filmmakers $1500 and $3000 for rights to use a 9-second portion of the song, the filmmakers filed suit as lead Plaintiffs in the class action suit against Warner. Plaintiffs asserted that Warner does not and never did own a copyright in the lyrics, and asked that Warner reimburse everyone that paid “Happy Birthday to You” royalties. The Court entered partial Summary Judgment for Plaintiffs, finding that Warner never owned the copyright to the lyrics. In early 2016 the parties entered a settlement agreement, which has been preliminarily approved by the Court. If the Court formally approves the settlement, it could clarify that “Happy Birthday to You” is in the public domain and provide up to $14 million to reimburse those who paid royalties.

Happy birthday to you, indeed.


About Boyle Fredrickson

Established in 1999, Boyle Fredrickson has grown to become Wisconsin’s largest intellectual property law firm. You’ve got ideas, we protect them.

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