Oh, Happy Day: Happy Birthday Enters the Public Domain
Restaurateurs, raise your hand if you didn’t know you were not allowed to sing “Happy Birthday” to your guests when they celebrated their birth at your restaurant—unless you paid a licensing fee to a third party.
Now put your hands down, because thanks to a judge’s ruling, the song, “Happy Birthday,” is in the public domain, which means public performances of the celebratory tune no longer require paying a licensing fee to Warner/Chappell Music. In other words, all those creative alternatives to the traditional song—like, “happy, happy birthday” with lots of clapping and “heys"—can stay or go.
Sisters Patty and Mildred Hill wrote what Guinness World Records claims is the most recognized song in the English language in 1893, based on the melody of “Good Morning to You.” Warner/Chappell Music claims to have bought the rights to the lyrics from one of the sisters and therefore could collect fees from anyone singing it in public or including it on recordings—to the tune of $2 million a year. Children’s birthday parties were pretty much safe havens.
Andrew MacKay, with Oakland, California, law firm Donahue Fitzgerald, was one of the attorneys in the class-action lawsuit brought against the music company. In all, there were three law firms involved. With the ubiquitous nature of the song, MacKay says he is surprised that the recent challenge was the first to question why the song wasn’t in the public domain. “This was a song written in the 1890s,” he says.
His client, Rupa Marya, learned she was pregnant and sang "Happy Birthday" to her unborn child during one of her performances with Rupa & the April Fishes. She was charged $455 after the fact by Warner/Chappell, which included the right to put the song on 5,000 copies of her album. (Rupa & the April Fishes is a San Francisco alternative band, whose songs are a mixture of jazz, punk and reggae.)
Marya, it turns out, was not just any lead singer. She’s a medical professor at the University of California, San Francisco Medical School and, even more important to our story, an activist.
The penalty for copyright infringement was steep, MacKay says. The infringer could be sued for damages that could be as high as $150,000 if Warner/Chappell could prove willful disregard. Paying the licensing fee was expensive as well, he points out. A children’s theme park, for instance, was paying $80,000 a year for the right to sing the song to its partiers.
As the named plaintiff in the class-action suit, Marya had the most to lose, MacKay points out. “If we had not won, Warner/Chappell could have collected lawyer fees,” he says. “Rupa knew this and was willing to take the risk.”
The defendant claimed Patty Hill, who wrote the lyrics, sold the rights to the lyrics to the company that was the precursor to Warner/Chappell. But because the rights were for a piano arrangement, the attorneys at Warner couldn’t prove it owned the copyright. The judge’s response was music to the plaintiffs’ ears: “Pianos don’t sing.”
It took three years for Warner/Chappell to agree to settle. There are still a few loose ends to tie up, such as the attorneys fees and how far back the damages go, but as of the last week in June, the music company agreed to pay back $14 million in license fees it has taken in during the last three years, MacKay says. Donahue Fitzgerald’s client will get an enhanced award of $10,000 since she took on the risk of being the named plaintiff, according to MacKay.
“Usually we’re on the side of the owner of the IP (intellectual property),” MacKay says. But this was righting an injustice. “After the hearing we went on the courthouse steps and sang 'Happy Birthday' to Rupa’s guitar accompaniment.”
Happy day, dear Warner/Chappell, not so happy day to you.