We Can All Sing Happy Birthday Now! (But It’s Still Not Public Domain)

A huge ruling came down in the "Happy Birthday" lawsuit on Tuesday evening. The upshot of it is that we can now all sing "Happy Birthday" without paying Warner/Chappell Music, which is reported to receive $2 million a year in licensing fees. But here's the funny thing: after two years, two hundred and forty-four legal filings, and possibly hundreds of thousands of dollars in legal fees, "Happy Birthday" still isn't really in the public domain.

"Happy Birthday" is a song so old that it's a little startling to think that at some time, someone sat down and actually wrote it. It seems like people have always been singing "Happy Birthday" to celebrate birthdays—and, well, people have been doing that for at least a hundred years. A 1901 article in the Inland Educator and Indiana School Journal describes children celebrating birthdays by decorating the birthday child with "a bright flower or badge," then standing around in a circle and singing "Happy birthday to you."

The composition—that is, the melody of the song—was created before 1893 by the Hill Sisters, and called the "Good Morning" song.

The music's copyright expired in 1949, so for decades, it's been perfectly legal to hum the music, or make up your own words. The copyright claimed by Warner/Chappell is the right to the lyrics.

Yes, this entire lawsuit revolves around the right to say "Happy birthday to you" over and over again.

The ruling is long and complicated. The story told by Warner/Chappell is that two sisters created the song, then transferred the copyright to another sister, who transferred it to a company, which transferred it to another company, which was eventually acquired by Warner/Chappell. The retelling of this convoluted tale features a since-defunct version of the Copyright Act, vintage songbooks, old newspaper articles, decrepit registration cards from the US Copyright Office, and a "smoking gun" book from 1922, exhumed from the dusty depths of the library of the University of Pittsburgh, that many people assumed would place "Happy Birthday" in the public domain once and for all.

But it's still not in the public domain! The judge's ruling says that Warner/Chappell doesn't have a copyright in the song, which isn't quite the same. "Basically what that means is that Warner/Chappell can't go out anymore and demand license fees for the performance of these lyrics. But it's at least theoretically possible that some other party could come forward and attempt to establish that that party is the successor-in-interest to the author by showing some chain of title," says Naomi Jane Gray, a partner at the law firm Harvey Siskind LLP, whose practice focuses on intellectual property.

Gray concedes that it seems extremely unlikely that someone else is going to pop up and claim "Happy Birthday." If there were any evidence of a different copyright owner, this lawsuit—which moved heaven and earth to dig up every yellowed scrap of paper that had anything to do with "Happy Birthday"—would have probably ferreted them out.

But an extremely low likelihood of the existence of a copyright owner doesn't mean there's no copyright. So "Happy Birthday" isn't public domain, it's now what's called an orphan work—a work that's still in copyright, but whose owner is unknown, so no one can get permission to use it, even if they try. We can sing "Happy Birthday," but we sing it with the mysterious specter of an unknown copyright looming over our shoulders.

This is what happens when copyright terms run long. People die. Their heirs die. Companies collapse or get acquired. Paperwork crumbles into dust.

Warner/Chappell got into trouble because there's no paper trail to show that the Hill sisters transferred copyright for the lyrics to "Happy Birthday"—or, for that matter, ever even thought of the lyrics as copyrighted.

It's not like they didn't understand how copyright worked. They took care to renew the registration of the melody, and they even sued movie producers for using it without permission in 1934.

The Hills are long dead, but they, like some of us today, maybe didn't think that repeating "Happy birthday to you" over and over again was worth a copyright. After all, that seems kind of silly, doesn't it?

The big question going forward is whether anyone is going to get their money back from Warner/Chappell. The lawsuit was filed as a class action, but has yet to be certified as one. We asked some experts, and they weren't aware of any legal precedent for forcing a company to return royalties collected for a wrongly-claimed copyright (though, like the long-lost smoking gun songbook in this lawsuit, some forgotten and overlooked case might be out there).

If the "Happy Birthday" case is what ends up setting a precedent for this repayment of royalties, it could be huge—not only does Warner/Chappell stand to lose millions, but other companies may be put under pressure to go diving into archives and libraries to figure out the copyright status of works that they themselves license. So even if "Happy Birthday" still isn't in the public domain, this lawsuit might work a ripple effect—albeit, an invisible one that only manifests as the absence of legal threats that would have otherwise existed.