Copyright absurdity: Happy Birthday to You

At large ^ | Jun-Jul 2003 | J. Byron

[J. Byron]

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.

[J. Byron]

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 An article posted at lawyers.com incorrectly states that Good Morning to All was written in 1895 but unpublished.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.

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[EggsAckley]

Nice job researching this! Fascinating.

[foreverfree]

bump

[John Beresford Tipton]

"I do not know why Senate Republicans are so responsive to Hollywood"

Er, ya tink it might be because they are a bunch of whores?

[J. Byron]

I'm not sure what they are, but they are something.

[J. Byron]

Oh yeah, I forgot to blame them for DMCA, which makes reverse engineering legally purchased CD's illegal. Here is a good list of related documents: DVD-DeCSS at Cryptome.org it should auto-scroll to the section for you.

[mtbopfuyn]

Mrs. Jones, pictured above, was caught singing "Happy Birthday" to her nephew and was sentenced to 3 years dressed as a peacock.

[Vetnet]

I love Free Republic!

My eyes bugged out when I saw this posting, as I have been negotitating with Warner-Chappell about this very song for a short film I'm shooting in a couple months. Even though the film is non-commercial and strictly for film festival purposes, the lowest price they have offered is a licensing fee (for the music only)of $500 for every year we wish to use it.

(That grinding sound is my teeth) But thanks for the post!

[berserker]

I have seen a few movies where the 'Happy Birthday' song is done to different music, probably in recognition of the asserted copyright.

[Question_Assumptions]

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.

[BigBobber]

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?

[John Beresford Tipton]

"I'm not sure what they are, but they are something"

Well if they are going to do *it*,
they might as well get paid for *it*

[J. Byron]

No doubt.

[J. Byron]

Yeah, what's up with that? I was hoping I'd see that lobster singing Happy Birthday!

[4mycountry]

Lobster? Bah! I want the ostrich!

[evilC]

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.

[J. Byron]

Sad, isn't it.

[J. Byron]

"Lobster? Bah! I want the ostrich!"

Maybe they could sing a duet. Need two more for a quartet. Any suggestions?

[Billy_bob_bob]

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?

[J. Byron]

"I have seen a few movies where the 'Happy Birthday' song is done to different music"

Yeah, or they sing "For He's a Jolly Good Fellow"...

[4mycountry]

The lion, maybe. And um....I don't know who else there is......maybe Zavien could do the other part. ^^;;

Hey, welcome to FR. I see you are a newbie. Enjoy the FReeping!

[KarlInOhio]

"I have seen a few movies where the 'Happy Birthday' song is done to different music"

Yeah, or they sing "For He's a Jolly Good Fellow"...

Wallace and Gromit, The Wrong Trousers.

The screen version and the tapes have Gromit's birthday card playing Happy Birthday. In most recent DVD version it plays "For He's a Jolly Good Fellow", but if you switch to the commentary track you can hear it playing "Happy Birthday".

It's the wrong song Gromit, and it's gone wrong.

[Vetnet]

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?

Unfortunately, even if you get as far as post production on a project, your problems are just getting started when you try to find an honest distributor. (One that actually pays you for your project)It's the same for the film or music industry

(I wonder if they'll ever have meaningful congressional hearings that cover that subject)(/Sarcasm Off)

[Willie Green]

Article I, Section 8. The Congress shall have power...
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

Artificial corporate entities have corruptly influenced Congress to ignore the wisdom of our Founders. They have perversely expanded the concept of "intellectual property rights" to violate and restrict the fundamental human right to freedom of thought, knowledge and expression.

I, for one, would welcome a radical reform of copyright law, restricting copyrights to nontransferable individual rights. Individual authors would enjoy their exclusive right for a truly limited period of time: Works of fiction/entertainment for maybe 15~20 years, Nonfictional works for perhaps 5~10 years, News/current-events for 1 year Maximum with provision for fair use.

[Pharmboy]

Why thank yew! Today IS my birthday!

[J. Byron]

"They have perversely expanded the concept of "intellectual property rights" to violate and restrict the fundamental human right to freedom of thought, knowledge and expression."

I agree with that. The real danger with copyright law in general is the scope being expanded to infinity. Abuse of copyright law threatens to protect mere ideas rather than nontrivial expressions of the ideas, contrary to the original intent. Some people wanted to copyright DNA sequences even though they are not creative works. Some people even try to assert copyright to facsimile reproductions of public domain works. Architecture is now protected. Fonts are in the process of becoming protected as they already are in other countries. I was even told that "staging" is considered a form of protected expression in some courts. For example, lets say I see someone's art-photo that uses a scenario I like. I set up a similar scene and photograph it. Nevermind that I copied nothing but an idea, I'm infringing.

[ConfusedAndLovingIt]

The real danger with copyright law in general is the scope being expanded to infinity. Abuse of copyright law threatens to protect mere ideas rather than nontrivial expressions of the ideas, contrary to the original intent.

I'm reminded of a short story I read many years ago about a politician who was pushing copywrite legislation basically expanding it to infinity (as you say). A friend of his explains to him that this will effectively kill new creative works because they are all pretty much simply variations on ideas already done. There is no such thing a completely new and original idea. The politician sees his error and does the right thing by killing the bill (remember, this is fiction). I'm pretty hazy on the details, but I wish I could remember who the author was because they sure could see what was coming.

[berserker]

FR Thread: Nuns Seek to Copyright Mother Teresa's Name.

[Neil E. Wright]

The short story you're thinking of is Melancholy Elephants by Spider Robinson. A story dedicated to Virginia Heinlein.

"The Era of Osama lasted about an hour, from the time the first plane hit the tower to the moment the General Militia of Flight 93 reported for duty."
Toward FREEDOM

[ConfusedAndLovingIt]

The short story you're thinking of is Melancholy Elephants by Spider Robinson. A story dedicated to Virginia Heinlein.

Thanks! I'll have to look it up and read it again to see if it is actually anything like I remember it.

[SoothingDave]

I, for one, would welcome a radical reform of copyright law, restricting copyrights to nontransferable individual rights.

What good is property if you have no right to transfer it? If I invent something and GM wants to buy my idea damn straight I better be able to "transfer" my copyright (aka intellectual property).

SD

[SoothingDave]

A millenium after the death of an author isn't "a limited time". Neither is a century.

It is a time with a limit. A century certainly isn't "limitless" time, is it?

SD

[Willie Green]

What good is property if you have no right to transfer it?

Well, I suppose there's some validity to that, so I'll make a compromise.
Individuals can transfer their rights to an artificial entity, but then the time period for which the "right" exists is automaticly cut by 50%. If the individual wishes to retain the full time frame for his/her exclusive right, he/she may simply license the right to an artificial corporate entity without actually selling the "right".

Fair enough?

[SoothingDave]

Sounds good. For the record, I think the continual extension of copyright for entertainment property is ridiculous. Every time Mickey Mouse is about to expire, the deadline changes.

SD

[Richard Kimball]

I am disgusted that you compare Senators to whores. Although both take your money before f*cking you, whores actually perform a service.

[J. Byron]

Explain how you can copyright a name. Of course you could trademark it if used in commerce, or do what Spike Lee did to TNN. And I just saw this...

http://www.freerepublic.com/focus/f-chat/943071/posts
http://www.freerepublic.com/focus/f-chat/943018/posts
...and the fool of a client is representing herself.

[J. Byron]

"Every time Mickey Mouse is about to expire, the deadline changes."

To all the lawyers and legal buffs, read this:
http://www.law.asu.edu/HomePages/Karjala/OpposingCopyrightExtension/publicdomain/Vanpelt-s99.html

[Question_Assumptions]

If I told you that I was going to stay at your house for a "limited time", I think you'd feel deceived if I stayed until they carted my corpse out the front door -- or maybe longer. Given the original span of copyrights and patents, I do not think the sense it was used in the Constitution is the literal sense with which you are interpreting it. Please note that there is an analogy with the duration clause of contracts (some jurisdictions prohibit perpetual contracts so that 99 years is often substituted for where "perpetual" is meant) and that the stated purpose of the Consitutional power was to encourage innovation, which keeping writings locked up for a hundred or more years most certainly does not do. Where would Disney be if they had to pay royalties for all of those classic fairy tales that they animated?

[berserker]

Re post 38: You're a little late on the article since its out of date. The Supreme Court this year ruled that the law extending copyrights (I think it was called the "Sonny Bono Copyright Extension Act") was constitutional.

[J. Byron]

I read your bio indicating that you are/were an attorney. Therefore, you should be able to see that the "argument" in my article regarding Happy Birthday has absolutely nothing to do with whether or not term extension is/was legal. It has to do with the fact that 90% of that song (Good Morning to All) became public domain decades before 1996. The other two words of the lyric ("Happy Birthday") became public domain by the fact that they were published in context with that song by 1915, and several publications during the 1920's became PD upon publication without copyright notice. No author was ever identified for the "Happy Birthday" adaptation. I could change two notes of a Bach cantata, and register it, is that valid? Are you contending that all previously published folk songs are under protection now because no author is known? Nope. Anyway, the Hill's song "Good Morning to All" exercised its proper term of protection. You see, it has nothing to do with Eldred.

[bk1000]

The most horriffic outcome of this has been the original
jingles belted out by servers at corporate restaurants
who can no longer sing 'Happy Birthday'. Makes my head explode.

[J. Byron]

Ahh, sorry, I guess you were referring to Lauren VanPelt's Disney article. However, term extension was not really the subject of her article either. The link title is misleading, read the article.

[J. Byron]

"who can no longer sing 'Happy Birthday'. Makes my head explode."

"who do no longer sing..." [without threat of legal action]

[Incorrigible Oracle]

FYI: Christian words for the traditional song [www.btinternet.com/~skitol/]

[J. Byron]

POSTSCRIPT FOR "EXPOSING HAPPY BIRTHDAY"
by the author

Whether or not Happy Birthday to You is public domain, the original song Good Morning to All is without question public domain. (It even was when Stravinsky wrote his version.) Even if the Hill's themselves had written, published, and registered the happy birthday version in 1935, that does not affect the public domain status of the earlier authorized version of Good Morning to All. Anyone else can write their own version based upon Good Morning to All. Good Morning to All is public domain no matter what setting you play it in, and just that fact is news to many people.

Common Law copyright: Good Morning to All (which comprises the majority of the song Happy Birthday to You) was published with consent of the author, and since the Hill's or Mr. Summy DID NOT pen the words "Happy Birthday to You" there is nothing for common law to protect regarding them.

If the added authorship by the anonymous person who wrote the Happy Birthday version is not considered to have been published in 1915 or in the '20's, and Mr. Summy published his version based upon knowing that version, then he has infringed upon the anonymous person's common law copyright also.

The lyrics "Happy Birthday to You" were published prior to use of them on stage and in telegrams. (Which would not have been publication.) Mr. Summy would have a valid copyright if he had taken the anonymous lyrics and put them to the tune himself. He did not; he took previously published material (albeit from an infringing combination of material) and registered it.

Scenario: If there had been anonymous lyrics published in a 1915 book that were completely different from Good Morning to All's lyric's in all respects except the meter, and at the top of the page, is printed "sing to the music of Good Morning to All" that would not be an infringement as none of Good Morning to All was republished. Mr. Summy could not take that as his own, even if judged to be public domain. The only difference in that scenario and this situation is that the Hill's original song was republished as a result of the combination. The Hill's had the right to determine first publication of THEIR material - what someone else authored, whether it infringed on the original or not, does not become the property of the Hill's. The 1909 law or current law doesn't say that.

That would mean if someone created a parody of a song, like "Wierd Al" does, and did it without permission, that the original song owner would by default own the parody too, even where such added material is substantially greater than the original song. Of course, if published, the original owner could stop further publication, have Al's CD's impounded, and collect damages. As far as I know, acquisition of rights to any new material in the infringing published variation is not a remedy.

The Hill's or Mr. Summy could have taken public domain or anonymous lyrics and added them themselves, but they did not. The changed words NOR the idea to combine them with the original melody were authorship by the Hill's, thus able to be registered. Whether the new material was two words as it was, or an entire public domain encyclopedia, the Hill's cannot claim ownership of what they did not author: the two words, or the idea to combine them. (You cannot copyright public domain material whether two words or an encyclopedia.) The Hill's could not copyright the combination (whether infringing or not) as they did not first combine the words and publish it.

The main point is that Happy Birthday to You was not *original* to the Hill's or Mr. Summy in 1935. That is an important principle of any copyright law. And even if the court had the authority to grants the [EXCLUSIVE] rights to an unoriginal bit of authorship to Mr. Summy, the earliest publication I know of was 1915. Current statutes imply that both Good Morning to All and the added material published in 1915, would now be public domain.

I'm not even sure that the court even knew of earlier publications that were similar to Good Morning to All: Happy Greetings to All, 1858, Good Night to You All, 1858, A Happy New Year to All, 1875, Happy Greeting to All, 1885. Notice a pattern here? i.e. folk song. There may be even more previous versions that could be located, I don't know.

According to an article reprinted by Katzmarek, Ronald H. Gertz, Esq., apparently President and Founder of Music Reports, questioned the validity of the copyright as cited in that article. Anyway, it is not my job to argue this case. IANAL. I'm only reporting my understanding of the situation. It would be up to an interested lawyer to develop an argument supported by any case law that would bear upon the 1909 Copyright Act, the 1934 case, and any recent law or uncovered facts that would affect it.