Lawsuit: "Happy Birthday" is not in copyright, and Warner owes the world hundreds of millions for improperly collected royalties

Copyright scholars have long been pretty certain that "Happy Birthday to You" is in the public domain, despite the fact that Warner/Chappell claims copyright on it and charges impressive licensing fees to use it in public performances. Those fees, however, are much lower than a copyright lawsuit would be, so everyone shrugs and pays them. Until now.

A documentary film company working on a movie about "Happy Birthday" has assembled a huge body of evidence showing that the song has been in the public domain since the 1920s, and is suing Warner to get them to return the hundreds of millions they've improperly charged in licensing since. This is gonna be great.

The full lawsuit, embedded below, goes through a detailed history of the song and any possible copyright claims around it. It covers the basic history of "Good Morning to You," but also notes that the "happy birthday" lyrics appeared by 1901 at the latest, citing a January 1901 edition of Inland Educator and Indiana School Journal which describes children singing a song called "happy birthday to you." They also point to a 1907 book that uses a similar structure for a song called "good-bye to you" which also notes that you can sing "happy birthday to you" using the same music. In 1911, the full "lyrics" to Happy Birthday to You were published, with a notation that it's "sung to the same tune as 'Good Morning.'" There's much more in the history basically showing that the eventual copyright that Warner/Chappell holds is almost entirely unrelated to the song Happy Birthday to You.

The detail in the filing is impressive, and I can't wait to see how Warner/Chappell replies. As the filing notes, there are a variety of copyright claims around the song, but all are invalid or expired, and the very, very narrow copyright that Warner/Chappell might hold is not on the song itself. In other words, Warner/Chappell is almost certainly guilty of massive copyfraud -- perhaps the most massive in history -- in claiming a copyright it clearly has no right to.

Lawsuit Filed To Prove Happy Birthday Is In The Public Domain; Demands Warner Pay Back Millions Of License Fees [Mike Masnick/Techdirt]

(Image: 53/365 - 02/22/11 - Happy Birthday, a Creative Commons Attribution (2.0) image from shardayyy's photostream)


  1. For decades TV shows have had characters singing “For he’s a jolly good fellow!” at birthday parties because of this lame-ass copyright claim.

    Good riddance to it.

    1. On iCarly, Carly once preceded the song with, “OK, now let’s sing our favorite public domain birthday song!”

    2. I don’t actually like the real deal, not that “For he’s a jolly good fellow” is much better (except in certain circumstances). At least it’s better than the songs that chain restaurants came up with to embarrass people with (not that I eat in those restaurants).

    3. That’s true, and I can say with certainty that my experience of the authenticity of those scenes has been diminished as a result. Perhaps a class action suit is also in order? :)

      1. This could be a good summer for entertaining court proceedings.  This suit against Warner Bros is simply butter on the popcorn.

  2. Look, I’ll call it even if Warner/Chappell agree, for 1 year, to live in a zoo, looking like monkeys and smelling like them, too.

    1. You could most likely work in a Jewish joke while you are at it too, considering the background of Warner Brothers.

  3. If they start running out of cash to pursue this, I’ll throw money at a Kickstarter to help them fight the good fight.

  4. Happy lawsuit to you!
    Happy lawsuit to you!
    Happy lawsuit, dear Warner!
    Happy lawsuit to you!

    How fucked are you now?
    How fucked are you now?
    How fucked is your cash flow?
    How fucked are you now?

    1. We hope they’re really good lawyers
      We hope they’re really good lawyers
      We hope they’re really good law-yeerrrs
      And have filed the said paperwork by the appropriate dates and aren’t screwed over by previous lawyers who were also probably regarded as “good” in the sense that they were able to wrangle the law around those pesky “common person” obligations that tend to get in the way of the corporate overlords ruling our world like the “good” peons we’re supposed to beeee…. That nobody can deny

    2. I’ve licensed the song a few times for shows I’ve produced.  Let me know when Warner/Chappell starts cutting checks to pay everyone back.  I’m not holding my breath. 

  5. I don’t see much (money) coming of this.  That people willingly paid a licensing fee and didn’t complain thereafter for perhaps years or decades will cut against any recovery (at least under the principle of estoppel). Even showing fraud (rather than mistake) is also a tough argument.

    1. The penalties for massive copyright fraud are sadly lacking. Really, Warner/Chappell fabricated evidence for their claim and committed extortion, but the chances of any executives directly responsible for those claims seeing jail time is dismally low. Personally, I think they should bleed green and be sentenced to three years hard labor doing grunt work for the EFF.

  6. Does this mean an end to the alternative happy birthday songs we see in movies when the producers don’t want to pay the royalty?

  7. WTF is wrong with you people?  Don’t you idiots understand that if corporations are not given century long copyrights on songs people will stop making music?  Do you hate music?  You know who else hates music?  The Taliban!  Basically, if  you are against letting the great-great-grandkids of someone who once made a song not watch a corporation collect royalties for it, you are basically a terrorist.

  8. I don’t know, there’s something about “filmmaker sues large music publishing corporation in copyright case” that doesn’t exactly fill me with hope. When it comes to bending laws in their favor against seemingly all odds, these companies are masters of the dark arts.

    1. Purely speculating, perhaps they’re masters of compensating certain judges for their time. Not a bribe, mind you! Just a little thank you…in an envelope. Purely speculating.

  9. Ah, so this is how copyright works.  A work is in copyright for a certain number of years, and then afterwards lives in a nebulous grey area of litigation threats and licensing fees until many decades later a large company with enough money finally has enough and uses large sums of said money to finally force the courts to rule on the public domain status of that work after difficult, expensive, years-long trials.

    You know, for the artists.

  10. I had a babysitter in the mid-1960’s who came to the US from Ireland as an adult and she used to sing the “Good Morning to You” version all the time.  Makes me wonder if this is even a US song to copyright, at all.

  11. I’ve read stories on this song before and always wondered how it could possibly still be in copyright.  My son and I were just talking the other day about it and the fact it makes millions of dollars a year just existing.  He asked if that means we can’t sing it at birthday parties anymore.   Bah, we’ll just sing the Spanish birthday song instead!

  12. Finally, I was getting sick of sending Warner those checks after every birthday party.

  13. Forget all that, when does 50 Cent’s “In Da Club/It’s Your Birthday” song hit public domain?

  14. Can’t recall where I grabbed this but here ya go, we should all really just sing this”

                         tune: “Volga Boatmen”
              Happy Birthday! Happy Birthday!
         1.   Now you’ve aged another year
              Now you know that Death is near
              Happy Birthday! Happy Birthday!
              1a.   So you’ve aged another year
                    Now you know that Death is near
         2.   Children dying far and near 
              They say that cancer’s caused by bheer

          2a.   Children dying everywhere
                Women crying in despair
         3.   Death, destruction, and despair
              People dying everywhere
              3a.   Doom and gloom and dark despair
                    People dying everywhere!
              3b.   Doom, destruction, and despair
                    Grief and sorrow fill the air
              3c.   Doom, destruction, and despair
                    People dying everywhere
              3d.   Death and gloom and black despair
                    People dying everywhere
              3e.   Pain destruction and despair
                    People dying everywhere
         4.   Typhoid, plague and polio
              Coffins lined up in a row
         5.   Now that you’re the age you are
              Your demise cannot be far
              5a.   Now you are the age you are
                    Your demise cannot be far
              5b.   When you’ve reached the age you are
                    Your demise cannot be far
    Other Common Verses:
         6.   Black Death has just struck your town
              You yourself feel quite run-down
              6a.   Pestilence has struck your town
                    You yourself feel quite run-down
         7.   Birthdays come but once a year
              Marking time as Death draws near
         8.   Long ago your hair turned grey
              Now it’s falling out, they say
              8a.   Soon your hair will all turn grey
                    Then fall out (or so they say)
    The Viking/Barbarian Verses:
         9.   Burn the castle and storm the keep
              Kill the women, but save the sheep
              9a.   Hear the women wail and weep
                    Kill them all, but spare the sheep
              9b.   May the women wail and weep
                    kill them all, but save the sheep
         10.  Burn, then rape by firelight
              Add _romance_ to life tonight
         11.  Indigestion’s what you get
              From the enemies you ‘et
         12.  May the candles on your cake
              Burn like cities in your wake.
              12a.  May the cities in your wake
                    Burn like candles on your cake,
         13.  May the children in the street
              Be your barbequeing meat
              13a.  We love children, yes we do
                    Baked or broiled or in a stew
         14.  May your deeds with sheep and yaks
              Equal those with sword and axe
              14a.  May your deeds with sword and axe
                    Equal those with sheep and yaks
         15.  They stole your sword, your gold, your house
              Took your sheep but not your spouse
         16.  This one lesson you must learn
              First you pillage, then you burn
         17.  While you eat your birthday stew
              We will loot the town for you,
    The SCA Verses:
         18.  We brought linen, white as cloud
              Now we’ll sit and sew your shroud
         19.  You’re a period cook, its true
              Ask the beetles in the stew
         20.  Your servants steal, your wife’s untrue
              Your children plot to murder you
    Other Verses:
         21.  Fear and gloom and darkness but
              No one found out you-know-what
              21a.  Just be glad the friends you’ve got
                    Haven’t found out you-know-what
         22.  I’m a leper, can’t you see
              Have a birthday kiss from me
         23.  It’s your birthday never fear
              You’ll be dead this time next year
         24.  Now another year has passed
              Don’t look now they’re gaining fast!
              24a.  So far Death you have bypassed
                    Don’t look back, he’s gaining fast
         25.  Now you’ve lived another year
              Age to you is like stale beer
         26.  Now your jail-bait days are done
              Let’s go out and have some fun
         27.  See the wrinkles on your face
              Like the pattern of fine lace
         28.  Were I sitting in your shoes
              I’d go out and sing the blues
         29.  So you’re 29 again
              Don’t tell lies to your good friend
              29a.  Tho you’re turning 29
                    Age to you is like fine wine
         30.  You must marry very soon
              Baby’s due the next full moon
         31.  When you’ve reached this age you know
              That the mind is first to go

  15. i think the penalty to corporate copyright trolls should be at least double per incidence of that per copyright infringement, after all the the first is extortion and the second is merely unauthorized duplication.  the first is much much worse.  but of course our government is more concerned with protecting the corporations then the people at this sad stage in our history.

  16.  Copyright is the right to make a buck

    That’s what it comes down to, when I look at all discussions about copyright infringements on the internet. When I look at copyright before the internet age, I agree with it. The law was made to make sure the originator of the work – and not someone else – has a right to make money with his creation.
    Only at that time everyone understood that the saleable item was something physical – a book, a painting, a roll of film, a photograph,…. and that the one who copied it with the intent of making money must pay the original creator a reasonable amount.

    But where in the “human rights” or the history of the internet is there written and deceed that if you or anyone publishes anything on the www, you have the right to make a buck? I can’t seem to find that.
    How was the internet hijacked by business interests that go way beyond the infrastructure of it? Or is that just the very american way to see each and everything on this world as a business, and therefore it must be dominated by it?
    There lies the crux of the matter. The idea of some fat cats that their content is way way more valuable than most other content on the net and because of their delusion of grandeur they are entitled to take over the whole internet, to change the rules only in their favour, hijack it.

    Look at that infrastructure and content thing again. If I drive from my hometown to the next big city to see a Springsteen concert, I use the roads paid by my(our) taxes and/or financed by tolls – infrastructure. If I have the money to buy a ticket, I’ll visit the concert – paid content. But if I stumble upon some street musicians who play exactly the same songs and I listen to it, I may choose to donate a few bucks to them, or not – free content.
    Am I to blame that they play Sprinsteen songs for free and I stand there and listen? No way. Theses guys (re)publish these songs and ought to pay Springsteen.

    Now if I have the “genius” idea to make a list of all street musicians in my area (or the world), where they play and when, what songs they play (their own or copyrighted material) – I could make a “pirate bay of street musicians”, print out 1,000 copies of it for friends and neighbors or put it on a website. Why the hell should that be illegal? I have no knowledge if they pay copyright fees or not, nor do I have an easy way to find out. Anyway that’s their problem, they do publish/perform these songs, not me; so they have to make sure that they comply with all applicable laws, not me. I’m just telling everyone that they do it.
    Even if Springsteen himself stood there on the street and performed, I wouldn’t know if each and every melody and line of text is his own or if he’s using someone else’s stuff. If someone feels like patrolling the streets for unauthorised free music, knock yourself out, it’s not gonna be me.

    So, whether I just listen to street musicians who play copyrighted material (download it into my brain) or whether I publish a list of where/when/what they play (make a linkfarm), how for christsake could you – the government – deny me access to the road that gets me back to my house or to my workplace or the shopping mall or the doctor or my girlfriend???
    Denying me access to the roads or the internet — to the infrastructure — is by all means pure idiocy. Seizing my computer for downloading copyrighted content is like seizing my car and my shoes for listening to a street performer.

    If a 4 year old can (re)publish anyones work on the www with very little effort for basically no publishing costs at all, it seems to me that the act of electronically publishing has lost it’s intrinsic value. By the same token, if your only way to get your creative work out to the masses is by publishing it in bits and bytes, your chances of making money are quite dire.
    Hence, if you want to make money off your content, you better think of other ways to achieve that rather than to hijack the whole internet just because you think you’re entitled to make a buck.

  17. It’s all academic anyway, since my family religiously renews its copyright on “the concept of an annual day in which to celebrate the date of one’s birth, with a form of party involving refreshments for all and gifts for the guest of honor…”.  Sing or don’t sing — just use the B word, and thanks for the fraction of a mill.

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