Mommy, "My Birthday Party will be Ruined if we Can't Sing That Song."
June 14, 2013 6:59 AM   Subscribe

Jennifer Nelson is suing the music publishing company Warner-Chappel to block it's copyright to the worlds most popular song: Happy Birthday to You. "The lawsuit notes that in the late 1800s, two sisters, Mildred J. Hill and Patty Smith Hill, wrote a song with the same melody called “Good Morning to All.” The suit tracks that song’s evolution into the familiar birthday song, and its ownership over more than a century." previously
posted by Xurando (62 comments total) 10 users marked this as a favorite

 
Yes, but did the Hill sisters' song include a part about looking and smelling like a monkey?
posted by The 10th Regiment of Foot at 7:03 AM on June 14, 2013 [12 favorites]


/what Day is Today?/
It's Nibbler's Birthday!/
What a day for a birthday!/
Now let's all have some cake!/
posted by The Whelk at 7:07 AM on June 14, 2013 [13 favorites]


The Stuff You Missed in History Class podcast recently had an episode about Happy Birthday's history and the shakiness of the copyright claims.
posted by sparklemotion at 7:07 AM on June 14, 2013 [4 favorites]


It must have been around the time where Michael Jackson and Paul McCartney (IIRC) were trying to outbid one another for publishing rights of the majority of the Beatles catalog, but at one point I heard from a number of sources that MJ also owned the copyright on the Happy Birthday to You.

I don't think it was until this thread that I consciously realized that that is and was in no way true.
posted by shakespeherian at 7:08 AM on June 14, 2013 [2 favorites]


I hope that chain restaurants file amicus curiae briefs pointing out the harm done to their staff by having to sing dumb-ass non-Happy Birthday songs.
posted by Etrigan at 7:11 AM on June 14, 2013 [26 favorites]


Surely "Happy Birthday" appears in dozens of movies without the filmmakers paying a fee. Not sure what the difference is here.
posted by roomthreeseventeen at 7:14 AM on June 14, 2013


"Who's Marty Sheinbaum?" "My predecessor."
posted by clavicle at 7:17 AM on June 14, 2013 [8 favorites]


Surely "Happy Birthday" appears in dozens of movies without the filmmakers paying a fee.

What makes you think that?
posted by FAMOUS MONSTER at 7:18 AM on June 14, 2013 [17 favorites]


Surely "Happy Birthday" appears in dozens of movies without the filmmakers paying a fee.

Per the article, the copyright on that song earns the company $2 million a year. That doesn't come from people singing it at birthday parties.
posted by Etrigan at 7:20 AM on June 14, 2013 [5 favorites]


I'm off to patent that countdown thing kids do now: Are ya one? Are ya two? ...
posted by shothotbot at 7:20 AM on June 14, 2013


Surely "Happy Birthday" appears in dozens of movies without the filmmakers paying a fee. Not sure what the difference is here.

Have you ever noticed how the scenes are cut so you only hear “-tooo yooou”, followed by the hoorays and applause? That's because the last two notes are as much of the song as can be used without it being an infringement (assuming that it is in copyright).
posted by acb at 7:21 AM on June 14, 2013 [6 favorites]


Surely "Happy Birthday" appears in dozens of movies without the filmmakers paying a fee. Not sure what the difference is here.

I'm pretty sure the authors are generally credited and the fee is generally paid. In fact, the great documentary Eyes on the Prize was unavailable for a long time because of copyright issues regarding the songs that appear in the film, and "Happy Birthday" was one of the big ones, because a group of people sing the song to Martin Luther King Jr.
posted by Bunny Ultramod at 7:22 AM on June 14, 2013 [5 favorites]




This song represents decades of the world collectively paying up rather than risking a lawsuit.
posted by ZeusHumms at 7:23 AM on June 14, 2013 [11 favorites]


My wife and I are trying to get the extended family to switch from Happy Birthday to Older , though we've been unsuccessful so far. Also, that's clearly also a copyrighted song.
You could also go the Dan Rydell route and choose public domain songs to sing to folks on their birthday. O Dem Golden Slippers, perhaps?
posted by cottoncandybeard at 7:28 AM on June 14, 2013 [5 favorites]


Isaac: Someone holds the copyright to Happy Birthday?
Dan Rydell: The representatives of Patty and Mildred Hill.
Isaac: Took two people to write that song?
Dan Rydell: Go figure.
Sports Night, Season 1, Episode 4, "Intellectual Property."
posted by octobersurprise at 7:29 AM on June 14, 2013 [17 favorites]


In fact, the great documentary Eyes on the Prize was unavailable for a long time

Well now I feel shitty about throwing out those VHS copies I'd taped off TV as a kid.
posted by yerfatma at 7:38 AM on June 14, 2013 [1 favorite]


Listen folks, if we don't get this fixed we could be looking at a future where Rihanna's "Birthday Cake" is sung at every birthday. Do you understand what kind of a horrible dystopian world that would be?!?
posted by The 10th Regiment of Foot at 7:40 AM on June 14, 2013 [3 favorites]


I came in to mention that the copyright of Happy Birthday was the B-plot of an episode of Sports Night, but not one but two users beat me to it. I love this place.
posted by Gelatin at 7:41 AM on June 14, 2013 [2 favorites]


CAKECAKECAKECAKECAKECAKECAKECAKE (but it's not even my birthday)

i know that i should hate that song for basically all the reasons, but i find it running through my head more than i'm comfortable with. i do admit that i'm curious about it becoming the happy birthday replacement just for mindfuck of watching my mormon grandmother sing "but you can lick the icing off" to her great-grandbabies.
posted by nadawi at 7:44 AM on June 14, 2013 [1 favorite]


Well now I feel shitty about throwing out those VHS copies I'd taped off TV as a kid.

Given that for the longest time, copies of the series were $250+ for the set, yeah, you missed a chunk of change. Thankfully the cost has dropped with the release of a new DVD set. So now when Adjunct Faculty run off with the library's copy, we don't have to pay accounting textbook prices to replace them.
posted by robocop is bleeding at 7:44 AM on June 14, 2013 [2 favorites]


sports night is so fucking good. if you want a time capsule of weird late 90s fashion (omg the hair) and really solid writing you should watch it - it holds up pretty well.
posted by nadawi at 7:45 AM on June 14, 2013 [7 favorites]


Warner can always buy a few Congressmen and have them write a law that specifically extends copyright to "however long ago Happy Birthday To You was written" and specifically assigns it to Warner.

That's how we do in America.

Courts schmorts.
posted by edheil at 7:49 AM on June 14, 2013 [7 favorites]


i do admit that i'm curious about it becoming the happy birthday replacement just for mindfuck of watching my mormon grandmother sing "but you can lick the icing off" to her great-grandbabies.

Incidentally I was at a fairly conservative wedding (she was a muslim, he was from a pretty Republican family, the families magically came together over their regressive views of gender roles - bliss!), when it came time to cut the cake suddenly and out of nowhere the loud speakers rang out with Rihanna's call to dessert which strangely the grannies of both families began singing along to while performing a sort of geriatric twerk! Bizarre.
posted by The 10th Regiment of Foot at 7:54 AM on June 14, 2013 [5 favorites]


I'm glad someone is finally pursuing this. It's long been one of the most egregious examples of copyright overreach.
posted by inturnaround at 7:54 AM on June 14, 2013 [5 favorites]


Have you ever noticed how the scenes are cut so you only hear “-tooo yooou”, followed by the hoorays and applause? That's because the last two notes are as much of the song as can be used without it being an infringement (assuming that it is in copyright).

(MP3) Krusty: [singing] I'm a nice guy, I'm a hell of a guy, and tonight we honour you! Stop the music! Stop it! One more line and we have to pay for the song!
posted by bitteroldman at 8:01 AM on June 14, 2013 [2 favorites]


sports night is so fucking good. if you want a time capsule of weird late 90s fashion (omg the hair) and really solid writing you should watch it - it holds up pretty well.

Yes, it does. But the real late-90s dissonance for me are all those establishing shots of New York with the World Trade Center towers.

Fun fact: The philosophical dude in the sports bar late in the second season, who winds up playing an important role in the last episode, was played by Clark "Agent Coulson" Gregg.
posted by Gelatin at 8:04 AM on June 14, 2013 [4 favorites]


Cibo Matto's Birthday Cake should be the default birthday song.

SHUT UP AND EAT!!!
posted by Cookiebastard at 8:09 AM on June 14, 2013 [6 favorites]


Fun fact: The philosophical dude in the sports bar late in the second season, who winds up playing an important role in the last episode, was played by Clark "Agent Coulson" Gregg.

I love when a character actor gets a breakout role after twenty years of steady work. Every time I see Gregg in anything old nowadays, I ask myself how this particular undercover assignment is helping SHIELD; it makes The New Adventures of Old Christine much more watchable.
posted by Etrigan at 8:12 AM on June 14, 2013 [9 favorites]


Have you ever noticed how the scenes are cut so you only hear “-tooo yooou”, followed by the hoorays and applause? That's because the last two notes are as much of the song as can be used without it being an infringement (assuming that it is in copyright).

Or possibly because everyone in the movies is a Jehovah's Witness and they're just keeping the language compliant.
posted by Copronymus at 8:21 AM on June 14, 2013


Mommy, "My Birthday Party will be Ruined if we Can't Sing That Song."

My birthday party was ruined because nobody sang Bill Bellamy by Lil B.
posted by eddydamascene at 8:26 AM on June 14, 2013 [3 favorites]


I HATE HATE HATE 'Happy Birthday' ...It is hands-down the WORST song ever written. It is a drone-y, off-key funeral dirge that marks time lost forever. I won't sing it. I won't let people sing it at me. I have reached a point where I won't even stand near people singing it. (I have looong since stopped 'pretending to mouth it in the back of the crowd') If I see a cake with candles sticking out of it, I will leave. the. room. I am SO HAPPY that this 'song' is still copyrighted and hope it stays that way FOREVER. Please patent it in some way that stops it being sung anywhere ever.

Why yes, I have waited tables before, why do you ask?
posted by sexyrobot at 8:48 AM on June 14, 2013 [6 favorites]


Fun fact: The philosophical dude in the sports bar late in the second season, who winds up playing an important role in the last episode, was played by Clark "Agent Coulson" Gregg.

And he was Special Agent Mike Casper on The West Wing.

One day I will plot out the overlap between Sorkin's various fictional universes, and also Whedon's since there's some connections there, and then since Firefly and Sports Night are in Tommy Westphall's head, tie it back into St. Elsewhere).
posted by ubernostrum at 8:52 AM on June 14, 2013 [3 favorites]


It is a drone-y, off-key funeral dirge that marks time lost forever

Ha, how true! Ever notice how slowly and solemnly everyone sings it? Like it's some soul-searching, Whitney Houston ballad? Pick it up, people! 100 bpm minimum!
posted by bitteroldman at 8:55 AM on June 14, 2013 [1 favorite]


I HATE HATE HATE 'Happy Birthday' ...It is hands-down the WORST song ever written

The problem isn't the song, it's the delivery. It's a lot more fun when you croon it to someone.

Happy birthday....to yoooou! Happy birthday....to yoooooou!
posted by explosion at 8:56 AM on June 14, 2013


The Free Music Archive and WFMU recently ran a contest looking for Creative Commons licensed birthday songs. The winners, and lots of other entries, are here.
posted by plastic_animals at 9:06 AM on June 14, 2013 [2 favorites]


It's a lot more fun when you croon it to someone.
Happy birthday....to yoooou! Happy birthday....to yoooooou!


Go back to hell.
posted by sexyrobot at 9:26 AM on June 14, 2013 [5 favorites]


I've always liked the "how old are you now?" part of the song. Is that copyrighted too?
posted by Xurando at 9:32 AM on June 14, 2013


Coincidentally I was listening to "Brrthday" as I opened this thread.

What's "Brrthday" you ask? One of the tracks on Ill Submarine, DJ BC's new mashup of Ill Communication and Yellow Submarine, uploaded today to the Internet Archive by (MetaFilter's own) Jason Scott.

Download now.
posted by Celsius1414 at 9:34 AM on June 14, 2013 [1 favorite]


Can't we use that creepy alternate birthday song we all learned at camp that went:

Kings and queens and bishops too
Wanna wish the best to you
So wish-day, wash-day, whaddaya say
BIRTHDAY!
Happy birthday to you
There is sorrow in the air
People dying everywhere
Happy birthday to you!
posted by pineappleheart at 9:37 AM on June 14, 2013


ButButButButBut...
posted by hexatron at 9:53 AM on June 14, 2013


In my social circle, it tends to be the Birthday Dirge. I don't think that one's copyrighted.
posted by Karmakaze at 9:58 AM on June 14, 2013 [1 favorite]


Dammit, beat me to the Birthday Dirge reference.
posted by Dreidl at 10:12 AM on June 14, 2013


I hope they win; and hope that people that have been making false copyright claims have the book thrown at them (maximum damages allowed under law).

I'm a tad confused about this suit, however... According to the NYT:

"The company paid $25 million in 1988 to acquire Birchtree Ltd., a small company whose musical holdings included the birthday song."

And...

"The suit seeks to be given class-action status on behalf of all others who have paid licensing fees for it since 2009."

Is this because of the statue of limitations for civil actions? (and does such a statue exist for ongoing behavior?).
posted by el io at 10:16 AM on June 14, 2013


I'm glad someone is finally pursuing this. It's long been one of the most egregious examples of copyright overreach.

Whereas I found myself fervently hoping I die on a much, much more compelling hill.
posted by Rykey at 10:17 AM on June 14, 2013 [1 favorite]


If the song was written in the late 1800s, wouldn't the copyright be up anyway? I've never understood how the song has failed to fall into the public domain. Can someone just continue renewing the copyright for eternity?
posted by BrianJ at 11:01 AM on June 14, 2013


If the song was written in the late 1800s, wouldn't the copyright be up anyway? I've never understood how the song has failed to fall into the public domain.

I've long thought the US Government should just cut someone a check and put it in the public domain as a part of American culture that we all should be able to share without worrying about royalties or singing "Oh Susanna!" or one of those dopey restaurant chain substitutes as an alternative.
posted by Gelatin at 11:21 AM on June 14, 2013


I've long thought the US Government should just cut someone a check and put it in the public domain as a part of American culture that we all should be able to share without worrying about royalties or singing "Oh Susanna!" or one of those dopey restaurant chain substitutes as an alternative.

Ah, but that would be Socialism!
posted by acb at 11:40 AM on June 14, 2013


“Well kiss that snooze fest goodbye! Because I wrote a new one and from now on whenever somebody blows out candles or unties a ribbon this is what their waitresses will be singing!”
posted by ob1quixote at 11:57 AM on June 14, 2013


Some thoughts:

"Hey Shorty, it's your birthday"

"I wanna wish you a Happy Birthday, from the bottom of my heaaarrt"

"You say it's your birthday. Well it's my birthday too, yeah!"

posted by mmrtnt at 12:38 PM on June 14, 2013


I do Hesh's birthday rap from Sea Lab 2021 nowadays.
posted by asperity at 12:44 PM on June 14, 2013 [2 favorites]


If the song was written in the late 1800s, wouldn't the copyright be up anyway?

The melody was written in the late 1800s, but originally had different lyrics. When the current lyrics were written may be key. If the lyrics were written in 1922 or earlier, then it would be in the public domain. I haven't read the full Brauneis article (2nd link in the OP), but based on the abstract there may be some relevant stuff in there.

Can someone just continue renewing the copyright for eternity?

Well, not for stuff created in 1922 or earlier, but for stuff that's still under copyright, they effectively can, as long as they can get Congress to keep lengthening the copyright term.

I would propose that if the rationale of copyright was to provide an incentive to content creators, changes to copyright law should not be retroactive, i.e., the copyright term of a work is whatever the law said it was when the work was created; lengthening the term of something that already exists obviously provides no additional incentive for that thing! But what I think the law should say and what the law says are two different things.
posted by DevilsAdvocate at 12:53 PM on June 14, 2013


Some thoughts:

...

"You say it's your birthday. Well it's my birthday too, yeah!"


Pretty sure this one is still under copyright, and its copyright status is a lot more clear than that of "Happy Birthday to You."
posted by DevilsAdvocate at 12:55 PM on June 14, 2013


Is the sacred summer camp coda copyrighted also?

"Stand up, stand up,
stand up and tell us your age, your age!
Stand up, stand up,
stand up and tell us your age!"

(We always used the Open Source lyrics anyways:

"Happy birthday to you, you belong in a zoo,
with the monkeys and the zebras and the kinkajous too.")
posted by Chitownfats at 2:57 PM on June 14, 2013


My family just sings the chorus and the part at the end of the Happy Birthday Stevie Wonder wrote for King. It's awesome.
posted by nooneyouknow at 3:21 PM on June 14, 2013


This is great, but as far as I'm concerned "Happy Birthday" has been outmoded by the best birthday song ever, which I learned from some new friends about 5 years ago:

"This is your birthday song!
It isn't very long."
posted by rhiannonstone at 5:11 PM on June 14, 2013 [1 favorite]


At Sacred Harp singings, if it's someone's birthday we sing them 436 Morning Sun, which sounds like it will be perky but the lyrics are:

Youth, like the spring, will soon be gone,
By fleeting time or conqu’ring death;
Your morning sun may set at noon,
And leave you ever in the dark.

Your sparkling eyes and blooming cheeks
Must wither like the blasted rose;
The coffin, earth, and winding sheet
Will soon your active limbs enclose.
posted by not that girl at 5:45 PM on June 14, 2013 [2 favorites]


Today, today, today, today,
Today, today is your birthday!
It's not the beavers' or the bears';
It's not the pickles' or the pears';
It's not next week or yesterday;
Today, today is your birthday!

No idea where this came from. (Besides my grandmother, that is.)
posted by ostro at 7:01 PM on June 14, 2013


"Happy birthday to you, you belong in a zoo,
with the monkeys and the zebras and the kinkajous too."


Where I come from, it ended "You look like a monkey and you smell like one too".
posted by inturnaround at 10:12 PM on June 14, 2013


One of the fun and lesser-known parts of this story is that the Hill Sisters set up a foundation for the copyright royalties that was left to their nephew, who later became the secretary of the Linguistic Society of America (the largest professional association for academic linguists). He continued to benefit with a third of the profits the song made (Time Warner taking two thirds) and for about forty years, he donated his share to the LSA. So the Linguistic Society of America benefited from the royalties to Happy Birthday, which is one of the reasons why their membership and conference registrations used to be cheaper, and why they were able to offer student scholarships.
posted by lollusc at 1:23 AM on June 15, 2013


The melody was written in the late 1800s, but originally had different lyrics. When the current lyrics were written may be key.

The actual filing, which can be read here, claims to have evidence that the lyrics were published by 1911, and may have been widely known as early as 1901. Which would rule out any possibility that either the lyrics or melody could still be protected by copyright.

Regarding the claimed current copyrights, their argument is that at best those would only cover specific instrumental arrangements of the song, and probably are not eligible for copyright anyway.
posted by ubernostrum at 1:47 AM on June 15, 2013 [1 favorite]


It's my birthday today and I found this link! Hooray!
posted by eparchos at 4:40 PM on June 16, 2013


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