I do not know why Senate Republicans are so responsive to Hollywood, and the recording/publishing industry. First we got term extension, adding 20 years to an already more than adequate term. (Upheld by the Supreme Court in the Eldred case.)Then we endured the Uruguay agreement where most foreign works published in the U.S. were put back under copyright protection. Then we were blessed with the La Cienega provision, which assured that all songs first published as recordings remained protected and were extended to benefit the publishing industry. Now Senator Hatch has announced his stupid "hack the copyright bandits" proposal. (I actually used to respect him.) In searching for public domain music for my own use, I learned that a copyright is asserted for the ubiquitous Happy Birthday to You. This is the most absurd assertion of copyright protection I have encountered in my quest. I compiled what information I could, related to that song, to negate the copyright. My blog gradually became an editorial. I have contributed it to the Internet community. Please consider and post your comments.
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 and the commonly cited article at
snopes.com. In addition, some articles may unintentionally present inaccurate information. An article posted at
lawyers.com 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unpublished.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, or Cornell University's
expanded chart. 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 (a small studio, that also sells sheet music reprints) and
NetStoreUSA which offers
Good Morning to All as part of a songbook. In addition,
Google or
Altavista might list other sources, or local music dealers might be able to order a copy.
Mainely A Cappella 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 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 page. Search for more midi examples using
MusicRobot.
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. 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, 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 and
Southwestern Baptist. In addition, the
Library of Congress 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), 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. Read the
copyright basics at the U. S. Copyright Office's Website, and freely access
recent case law at
Findlaw.com. The Nolo book
The Public Domain 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 or
Music Reports, which may or may not agree with the opinions in this article.
Mrs. Jones, pictured above, was caught singing "Happy Birthday" to her nephew and was sentenced to 3 years dressed as a peacock.
I have seen a few movies where the 'Happy Birthday' song is done to different music, probably in recognition of the asserted copyright.
A millenium after the death of an author isn't "a limited time". Neither is a century. The Constitution specifies a "limited time" for a reason. Of course they should just print the Constitution on toilet paper because that's how most people in government treat it these days.
Gee, I wonder if Orin Hatch every sang "Happy Birthday" in public without paying a royalty?
Would that give us the right to trash his personnal property?
Yeah, what's up with that? I was hoping I'd see that lobster singing Happy Birthday!
I find it strange that if I create a life saving drug, I get 20 years patent protection but a silly song like "Happy Birthday To You" is still bringing in the bucks for the author. So in 20 years the drug formula becomes "public property" but the source code for Windows 3.1 will still be locked in a Redmond vault until the next millenium.
There was a series of books published that listed all of the movies that were considered to be public domain. The books were expensive, something like $500 per decade, but the information was invaluable for someone who might be interested in releasing obscure movies on video.
Now, thanks to the lobbying efforts of Disney and others, those books are not worth the paper they are printed on. For all intents and purposes EVERYTHING is now copyrighted FOREVER. Nothing will ever fall into the public domain ever again for eternity. This is what our country and our laws have become, a playground for corporate and vested interests.
See "Carolina Cannonball" or "Valley of the Eagles" lately? No? Don't worry, you never will. There are literally thousands and thousands of great old movies that you will never, ever see, thanks to our shiny new copyright laws. Doesn't matter if it is sixty years old and everyone involved in the making of it is dead, that movie is still fully copyrighted, and if you dare to make a copy and sell it the corporate copyright holders will sue you for everything you own.
I was looking into getting into the business of making DVD's out of old public domain movies and then selling them for a few bucks, but with the new laws (thanks Disney!) I've given up on that idea. Lawyers and corporations get everything, everybody else gets nothing. That's what America is all about, right?
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