The copyright for the song, which was reputedly written by Louisville sisters Patty and Mildred Hill in the 1890s, is being challenged in federal court.
"Happy Birthday to You
Happy Birthday to You
Happy Birthday Dear ----
Happy Birthday to You"
Every 5-year-old knows it. It is the most frequently sung song in the English language, according to the Guinness Book of World Records, surpassing the works of Bach, Beethoven and the Beatles, says the Songwriters Hall of Fame.
It has been sung in 143 movies, translated into at least 18 languages and used in ads to sell everything from insurance to margarine.
But was one of the world's most popular songs really written by Louisville sisters Patty and Mildred Hill in the 1890s?
That question may finally be settled, courtesy of a lawsuit filed last week in federal court in New York by a documentary filmmaker challenging the tune's copyright.
Good Morning to You Productions, which is making a movie about the song's history, is asking the court to declare the song in the public domain and force Warner/Chappell Music Inc. — the world's third-largest music publisher — to return millions of dollars in licensing fees it has collected from thousands of companies and individuals who have publicly used or sung Happy Birthday.
"It is shocking that someone claims to own it and others therefore have to pay a fee to use it," Jennifer Nelson, the movie company's president, said in a statement released by her lawyers. "I hope to return it to the public where it rightfully belongs."
One of Nelson's lawyers, Mark Rivkin, said as Nelson did more and more research on the song's roots, "she got madder and madder and madder."
Happy Birthday generates an estimated $2 million a year in licensing fees, part of which goes to a children's education organization designated by the Hill family. The sisters have no surviving family members.
Nelson's lawyers say they have "irrefutable documentary evidence, some dating to 1893," showing that if Warner/Chappell owns the right to anything, it is only to a couple of long-forgotten piano arrangements for Happy Birthday published in 1935.
James Steven, a spokesman for Warner Music Group, which owns the music publisher, said the company doesn't comment on pending litigation.
If Warner/Chappell Music prevails, it will be able to continue collecting fees until 2030, when the disputed copyright expires, from anyone who wants to publicly perform the song or use it on television or in movies.
George Washington University law school professor Robert Brauneis, who may be the world's leading scholar on Happy Birthday, says Warner can only win if it proves that Mildred and Patty Hill wrote the song.
And Brauneis, who spent two years researching its copyright, said that while both were remarkable women — Mildred was later a renowned musicologist and Patty an esteemed professor at Columbia University Teachers College — there is "scant" evidence that they did.
Good Morning to You
Good Morning to You
Good Morning Dear Teacher
Good Morning to All
There is little dispute that in the 1890s the Hill sisters wrote the precursor to Happy Birthday, a song for Patty's kindergarten students they called Good Morning to All and which featured the same melody.
"She was the musician and I was, if it is not using too pretentious a word, the poetess," Patty said in a deposition in a suit filed in 1934 by their younger sister Jessica against renowned composer Irving Berlin, playwright Moss Hart and the producers of a Broadway musical that allegedly featured Happy Birthday without a license.
Patty said that Mildred would work on the score each night in the family's Louisville home and the next day she would try it out with her pupils, until they finally came up with a version that "even the youngest children could learn with perfect ease."
The sisters published Good Morning in 1893 in a book of sheet music called Song Stories for Children, which they copyrighted and exhibited that year at the World's Fair in Chicago.
Using the same melody, children at Louisville Experimental Kindergarten School would sing Good Bye to You, Happy Vacation to You and — with every birthday celebration — Happy Birthday to You, Patty said in the deposition.
But on cross-examination, she admitted that the sisters never published or copyrighted the lyrics to Happy Birthday — not even as the song grew increasingly popular over the next two decades from coast to coast.
"I was never a money grubber," Patty said, explaining she was more interested in education.
Brauneis said his research shows that while Happy Birthday probably was first sung in Louisville, the lyrics developed informally and nobody can rightly claim them.
As Rivkin put it, "It is kind of a folk song that just sort of happened."
A plaque erected in in Louisville in 2002 says that "local history recounts" that Patty Hill suggested during a birthday party for a girl named Lisette Hast in the Little Loomhouse in the Kenwood-Iroquois neighborhood that the words "good morning to all" be changed to "happy birthday to you."
But Brauneis said there is no documentation for that story.
Mildred died in 1916 and Patty in 1946. The Hill family and its foundation eventually filed four suits challenging the unlicensed use of Happy Birthday, including one against Berlin and Hart and another that contested the song's use in singing telegrams — including the first ever sent.
But none of the suits produced a verdict on the song's authorship or ownership.
The Summy Co., which published Song Stories for Children, won a copyright in the 1930s for the Happy Birthday lyrics put to Mildred's melody, but Brauneis said it was only for arrangements written by two of its employees.
In 1988, Warner Communications, as it was then known, acquired the title — along with about 50,000 other songs — in a $25 million deal, and its successor, Warner/Chappell, collects licensing fees each year, which it shares with an organization founded in 1892, with the support of the Hills, called the International Kindergarten Union.
Now known as the Association for Childhood Education International, it collected $619,990 in royalties in 2011, according to its federal tax report, which was about one-third of its revenue.
It would lose that funding if the court decides Happy Birthday belongs to everyone.
Brauneis said that producers and directors haven't challenged Warner/Chappell's copyright before because it is not worth the expense. Nelson had to pay only $1,500 to license the song — and even a big Hollywood blockbuster would have to pay no more than $25,000 to $30,000 to use it, he said.
Restaurant chains, including Red Lobster and Outback Steakhouse, have written their own birthday songs to avoid having to pay for live music performance licenses.
But Nelson's suit could be worth her lawyers' time, because they have filed it as potential class action on behalf of everyone who paid licensing fees for the song since 2009.
Until the case is settled, Brauneis says, "You can sing it in the shower, and you can sing it with family and friends in your dining room.
"But when you start singing it with waiters in a restaurant, that starts to cross the line, and when you are singing it in a movie or a Broadway musical, then you have crossed the line because that is a public performance."