Ok, here’s the deal. Everyone needs to stop paying any royalties on “Happy Birthday,” wait to get sued by Warner Music, and when they come after one of you, start a giant class-action lawsuit based on the findings of one Robert Brauneis of the George Washington University law school. Those findings, in a nutshell? The song isn’t currently covered by copyright, and, quite possibly, hasn’t been for a very long time.

The tune of Happy Birthday was composed by two American kingergarten teachers, and called “Good Morning to You.” The song reappeared with the “Happy Birthday” lyrics some time later, and a music publisher applied for a copyright in 1935, naming Preston Ware Orem and Mrs. R.R. Forman as the authors of the “Happy Birthday” ditty. In 1990, per Wikipedia, some real money came into play:

“In 1990, Warner Chappell purchased the company owning the copyright for US$15 million, with the value of ‘Happy Birthday’ estimated at US$5 million. Based on the 1935 copyright registration, Warner claims that US copyright won’t expire until 2030, and that unauthorized public performances of the song are technically illegal unless royalties are paid to it.”

However, argues professor Brauneis on his exhaustive paper on the subject: “The song that became ‘Happy Birthday to You,’ originally written with different lyrics as ‘Good Morning to All,’ was the product of intense creative labor, undertaken with copyright protection in mind. However, it is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application.” (Emphasis added.)

The unbelievable thing about this situation is, as Brauneis notes, that nothing is likely to change unless someone comes along with the inclination and cash flow to take on the Warner juggernaut. And that juggernaut is very likely to throw a lot of money at such a case, considering the benefits it’s reaping from this claim — some $2 million a year.

So, here we are, post Copyright Extension Term Act, terrified of singing “Happy Birthday” in a movie or television show or even a children’s party with a good PA system until 2030, when it’s very likely, according to Brauneis, his 69-page paper, and his “two hundred unpublished documents found in six archives across the United States,” that Warner isn’t entitled to a dime of royalty payouts and in fact, probably owes a whole lot of back checks … and it’s a near-certainty that nothing is going to change in the very near future.

But good work, Robert Brauneis, because if there’s anything that could get someone up in arms (maybe in Congress? It’s wishful thinking, I know), it’s this type of actual research and the attention that I hope it gets. Dear Mainstream Media: are you listening? “Happy Birthday” must be free!

Filed under: Information, News, copyright, Happy Birthday, law, Warner Music