'Happy Birthday' Song May Finally Lapse into the Public Domain

The "smoking gun" document may have inadvertently been provided by the defendant in the lawsuit

Photo: Joe Polillio/Getty

The copyright saga around “Happy Birthday” has been a long one. Though the song is one of the world’s most famous, and many people assume it’s in the public domain, the copyright for it is held by Warner/Chappell Music, who purchased the rights to the song in 1988 from the Summy Company.

The melody to the song is based on a folk song “Good Morning to All,” allegedly composed in 1893, and the Summy Company registered the text for “Happy Birthday” in 1935, crediting Preston Ware Orem and Mrs. R.R. Forman with the text.

That brings us to Jennifer Nelson. She filed a lawsuit two years ago that claims “Happy Birthday” should be in the public domain, and a newly surfaced document in the case – coincidentally provided by Warner/Chappell themselves – may be just the smoking gun she needs to prove her point.

The document in question is a children’s song book called The Everyday Song Book. It features “Happy Birthday,” which is but one of 500 documents handed over by Warner/Chappell earlier this month. Unfortunately for the company, it appears to contain no copyright notice for “Happy Birthday,” only a notice reading “Special permission through courtesy of The Clayton F. Summy Co.”

That’s especially damning for two reasons. First of all, Warner/Chappell has consistently claimed that the Summy Company never filed any copyright for “Happy Birthday” before 1935. Secondly, earlier editions of the book date back to 1922, and “Happy Birthday” never appeared with any kind of copyright notice. (Under the 1909 Copyright Act, published works had to include some mention of the word or the work automatically went into the public domain. Thanks to Ars Technica for explaining all this to us.)

The next hearing in the case is scheduled for Wednesday, which means further developments are on the way.

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