Federal Judge Rules 'Happy Birthday' Is In The Public Domain

Transcript

KELLY MCEVERS, HOST:

And this story comes to us from the world of copyright. If you've ever had servers serenade you in a restaurant with the song "Happy Birthday," they might have been violating copyright law unless the restaurant paid royalties for that performance. Well, "Happy Birthday" may finally be free for anyone to sing anywhere. As NPR's Laura Sydell reports, a federal judge in Los Angeles has ruled copyright claims to the song are not valid.

LAURA SYDELL, BYLINE: It was total surprise to attorney Randall Newman when a client called him and said she had to pay $1,500 to use "Happy Birthday" in a documentary about the history of the song.

RANDALL NEWMAN: I didn't believe her. I was - when she told me that, I was like, there's no way it's going to be copyrighted. How could that possibly be?

SYDELL: Newman was sure the song was in the public domain, that anybody could sing it without paying for it. So he began to investigate. He found that Warner/Chappell, a division of Warner Music Group, claimed to own the copyright to "Happy Birthday," and it has reportedly been collecting about $2 million a year in royalties for the song. The acclaimed civil rights documentary "Eyes On The Prize" was unable to show in re-runs or be sold on VHS and DVD because of a scene in which activists sang "Happy Birthday" to Dr. Martin Luther King Jr.

(SOUNDBITE OF DOCUMENTARY, "EYES ON THE PRIZE")

UNIDENTIFIED MAN: Well, some folks celebrate Abraham Lincoln, but we're going to celebrate Martin Luther King's day today. Don't let him out of here.

UNIDENTIFIED CROWD: (Singing) Happy Birthday to you...

SYDELL: Two sisters - Patty Smith and Mildred Hill - are credited with writing the song sometime before 1893. They were teachers who wanted a simple tune that small children could find easy to sing. Instead of happy birthday, the original lyrics said good morning to you and they adapted them further, says Robert Brauneis, a law professor at George Washington University who's written extensively about the song.

ROBERT BRAUNEIS: That tune was used with many different words on many different occasions. If it was Christmas or New Year's, children and teachers would invent other words the sing to that same melody.

SYDELL: That melody is now in the public domain. But 40 years after the song was written, the sisters' foundation asserted copyright to piano arrangements of "Happy Birthday" in connection with the number of disputes with their music publisher. But attorney Newman says in all the documents on Earth for the current case, the lyrics to "Happy Birthday" never came up.

NEWMAN: There's no evidence that the Hill sisters, even if they did write the lyrics, ever transferred those lyrics to the publisher.

SYDELL: And that was at the heart of the judge's ruling. Warner/Chappell declined to talk with NPR but released a statement saying it's reviewing the decision. But if it was this clear-cut, why hadn't anyone filed suit before?

NEWMAN: I don't think anyone had the resources or an incentive to challenge the copyright until we really came up with this idea of let's do this as a class-action.

SYDELL: So Newman's team filed suit not only on behalf of the documentary filmmaker, but on behalf of others who've had to pay for the song in the past. Professor Robert Brauneis says it's an important reminder about how the length of copyright has been extended incrementally over time from 14 years in 1909 when the law was passed to the current life of the creator plus 70 years.

BRAUNEIS: Each increment may sound reasonable. And then you look back at what you've done after all those increments, and it's clear that it's a little bit too much.

SYDELL: The next phase of the "Happy Birthday" suit will determine if Warner/Chappell will have to pay back some of the money it's collected over the years. Laura Sydell, NPR News. Transcript provided by NPR, Copyright NPR.