The continuing charging of licensing fees for commercial use of that most public of songs, “Happy Birthday,” has been an annoying anomaly for as long as I can remember. Why did TV families always sing some lame approximation or substitute when a character had a birthday? Just last week, I expressed my chagrin when Tom Selleck’s extended family on “Blue Bloods” brought out granddad Len Cariou’s birthday cake, blazing with candles, as they sang, “For He’s A Jolly Good Fellow!” Who sings that at a birthday party today? People who don’t want to be held up for the licensing rights for a song over a century old, that’s who. I believe the first time this issue imposed itself on my consciousness was when they sang some lame birthday song stand-in on “The Flintstones.”
Jennifer Nelson, a film-maker, has had enough. She was producing a documentary movie about the song, and naturally wanted it to be performed at one point in her film. Like many before her, she was told she would have to pay $1,500 via a licensing agreement with Warner/Chappell, the publishing arm of the Warner Music Group, which acquired the rights to the song in 1988. Nelson’s company paid the fee and is now seeking certification for a class action law suit arguing that “Happy Birthday” is in the public domain, and has been. Warner/Chappell collects about $2 million a year in licensing fees for it, and the suit seeks return of the fees it collected over the last four years. The lawsuit cites the research of Robert Brauneis, a professor at the George Washington University Law School and the author of a 68-page article titled “Copyright and the World’s Most Popular Song.” In the study, Professor Brauneis demonstrates, to his satisfaction at least, that the Hill sisters, Mildred and Patty, wrote a song in the late 1800s with the same melody called “Good Morning to All.” Nobody is certain who wrote the lyrics referring to a birthday, but it was in popular use as early as 1911.
Professor Brauneis told the New York Times that “Happy Birthday to You” was “economically significant” in that it “still produces millions of dollars of income in a year,” and thus he is hopeful hat a successful legal challenge “might be a model for challenges to other songs.”
We should all be so hopeful. The intellectual property law intended to give the creators of original artwork, music and literature a fair opportunity to profit from their labors, and by so doing to encourage creativity and invention has been grotesquely distorted, in part by lobbying efforts of entertainment mega-conglomerates like Disney, to actually impeded creativity, as in the restrictions encountered by Nelson. While a creator should be able to also profit from selling licensing rights, it is absurd for the second or third party owner of them to be able to insist on payment for use so long after the origination of the material, and no situation that I am aware of illustrates this absurdity better than the “Happy Birthday” fiasco. It’s too late for Fred Flintstone and the Reagan clan on “Blue Bloods,” but it’s way past time to let “Happy Birthday” be free to all.
Next up: letting the characters sing the tune of “Who’s Afraid of the Big, Bad Wolf?” in productions of “Whose Afraid of Virginia Woolf?” Despite the obvious allusion, playwright Edward Albee was forced to use the public domain tune “Here We Go Round The Mulberry Bush” instead of that song, because Disney wouldn’t allow it’s 1933 cartoon ditty, sung by three little pigs, to be used in such an uncivil drama.