Thursday, October 21, 2010

Why Is "Happy Birthday To You" Still Under Copyright?

One of the English language’s most recognized and performed songs is Happy Birthday to You (HBTY), which likely first appeared between 1893 and 1912 as new age-grading standards in American schools increased the need for a common celebratory song. Historian Elizabeth Pleck’s work shows birthday parties as a common practice had only come into vogue around the 1830s, while confection-lovers would wait another 20 years before the modern birthday cake emerged in the 1850s. HBTY is a derivative work combing generally-assumed-to-be-folk lyrics with the tune of Good Morning to All (GMTA) a melody written by and copyright to Mildred J. Hill in 1893. The original GMTA lyrics were penned by her sister, Patty Smith Hill.

"Good Morning to All" sheet music

Good Morning to All sheet music

Today, after a series of mergers and acquisitions the Warner Music Group claims copyright on HBTY, and current law states it will remain rightful owner in the U.S. Until 2030. This assertion is contested in detail by Professor Robert Brauneis in his paper Copyright and the World’s Most Popular Song. In spite of common belief that it remains under copyright, Braunies’ archival research indicates that HBTY may actual be a public domain work. By recapping his arguments (after the jump), I hope to help other artists understand the importance of documentation and proper registration of works should they seek to obtain copyright protection – as well as to consider problems that can arise from the continued extension of copyright term limits and in turn, the estate-based control of past works. Lastly, I’d like readers to become more aware of the general contributions made by Patty and Mildred Hill to the respective fields of education and musicology.

For the purpose of clarity we first require a set of definitions and to understand there are 3 layers of copyright in this case. (1) The melody in GMTA is one work, subject to it’s own copyright; (2) the words “Happy birthday to you, happy birthday to you, happy birthday dear (celebrant name), happy birthday to you” is another work who’s author is, I argue, unknown despite the existence of two seemingly obvious candidates. Brauneis refers to the combination of these works as (3) GMTA/HBTY, which as a derivative work, is subject to its own copyright. To understand why Warner Music Group’s claim on Happy Birthday to You may be invalid, we have to trace back the history of the GMTA/HBTY combination; it’s where the $ is.

In 1893 Mildred and Patty began work on Song Stories for the Kindergarten, a songbook which providing children with expressive, emotional music of quality. The Hills adapted Mildred’s original melodies (such as GMTA) to fit the limited singing range of young children. Her drafts, equipped with easy and repetitive intervals, were brought into the classroom, tested, and then later modified as needed so that even the youngest kids could participate. Over the next years Mildred would focus on the study of African-American hymnals and spirituals while Patty advanced her studies in early childhood education.

Beginners' Book of Songs (Cable Co. of Chicago)

Beginners' Book of Songs

Around or prior to 1912, birthday parties had come fully into vogue with the masses. Assisting in the celebrations, companies like Cable Company (Chicago) began producing unauthorized printings of sheet music – the melody of GMTA with the lyrics changed to HBTY. Its possible the Hills were unaware of these printings, but if they were we might assume from their lack of legal action that full recognition of HBTY’s massive market potential was still a few years off. On June 5th 1916 Mildred Hill passed away and her sister, Jessica Hill inherited a 1/5th interest in the renewal rights to Song Stories for the Kindergarten. In 1921 she filed a timely renewal on that claim with the copyright office.

Clearly the Hill family had a solid general understanding of copyright matters. Two examples will exemplify that fact. Patty Hill, according to first-hand accounts, attended a production of As Thousands Cheer produced by Sam H. Harris Theatrical Enterprises. During a birthday celebration scene, actors sung the lyrics of HBTY to the tune of GMTA, which (whether she was “enraged” or not) lead to accusations of copyright infringement by Jessica Hill who sued the theatrical group in the case of Hill v. Harris in August 1934. (view complaint)

Later that year (December 29th 1934) permission to use the GMTA melody was granted by Jessica Hill to the Clayton F. Summy Co., who began printing collections of sheet music containing the GTMA/HBTY combination. Clayton F. Summy then filed for copyright on 6 arrangements of the work, of which 4 were instrumental and 2 included GMTA/HBTY. The two arrangements with words were credited to Preston Ware Orem and Mrs. R. R. Forman respectivly, as employees of the Clayton F. Summy Co. Orem’s claim was for “Arrangement as easy piano solo, with text.” Forman’s was on arrangement and “revised text” which consisted of this additional verse: “May your birthday be bright, full of cheer and delight.” A nice verse but, commercially insignificant today due to infrequency of use. (view original application)

In the interest of time, we’re going to fast forward now to 1958, after Summy F. Clayton Co. had been sold to the Sengstack family and was now run by David Sengstack, who merged with C.C. Birchard Company to create Summy-Birchard Co. This company published several collections which included GTMA/HBTY, and with much variation in accreditation. Hill-Wilson, Hill-Dahnert, “traditional”, and Patty (Patti) & Mildred Hill at one time or another all got props in the credit mix – a curious state of confusion when we consider that by the 1940s GMTA/HBTY was earning approx $15k-$20k per year in licensing fees.

Summy-Birchard's approved renewal

Summy-Birchard's approved renewal

In 1962, licensing revenues were nearly $50k/year and in an effort to protect that cash flow, Summy-Birchard Co. filed for and successfully renewed their claim. Here we find problem one: the renewal mirrored exactly the 1934 registrations, with the exception of updating the Clayton F. Summy name to Summy-Birchard Co. The 1909 Copyright Act stated that the original term of copyright was obtained by publication via proper notice. Registration was not necessary during initial terms, but it was necessary for renewal. If the work sought to be renewed had not been previously registered, applicants could submit both an original registration & renewal at the same time, along with the deposit copies of the work being renewed. Summy-Birchard Co. never submitted an original registration for the GMTA/HBTY combination. No one has.

In other words, the 1962 renewal is valid regarding the Orem & Forman arrangements (piano solo, extra words) but not lay a specific claim on the GMTA/HBTY combination. Assume for the sake or argument that Summy-Birchard’s renewal was found to be valid – that the lack of original registration was simply a paperwork error or something we can blame on an intern. Summy-Birchard Co. would still need to prove its 1934 registration of GMTA/HBTY was valid to begin with.

Back in October 1942 the case of The Hill Foundation, Inc v. Clayton F. Summy Co. parties disuputed whether Jessica Hill has previously assigned copyright of Song Stories for the Kindergarten to Clayton F. Summy, or merely assigned it for limited-run printings. When we consider that in Hill v. Harris, the Hills were trying to assert and protect their copyright, I find it highly suspect they would have assigned rights away to Clayton F. Summy. During litigation, Clayton Summy Co. obtained a 1/8th interest in Song Stories for the Kindergarten through other legal, if not slightly sneaky means.

One William Hill had an interest in Song Stories for the Kindergarten through inheritance. He died in 1934, named his wife Corinne executrix of his estate, she died in 1939, and executrix to her estate, Leo B. Lowenthal then curiously petitioned the Probate Court of Cook County, Illinois to have himself withdraw from that representation & to have the court appoint one Allen Davy. This Davy fellow approved an inventory of the estate at the shockingly low figure of $15. He then persuaded the court to hold a private sale in which the inventory was sold to Clayton F. Summy for $25.00. Clayton F. Summy argued that it had an interest in GMTA/HBTY as a previously unpublished work from the estate. However no mention of, and in turn no transfer of unpublished works actually took place! Giving Clayon F. Summy the full benefit of the doubt here, let’s look at the issue of whether the Hill’s actually authored GMTA/HBTY to begin with.

Hill v. Harris testimony

Hill v. Harris testimony

Back in Hill v. Harris Patty delivered some testimony that causes serious doubt on the Hills’ claim of authorship and in turn, Clayton F. Summy’s claim of copyright interest. Patty stated (1) that she wrote words for the published version of GMTA (as asingle verse, which did not include HBTY lyrics), (2) that she, or she and Mildred, wrote “many other verses” to GMTA; and (3) that the HBTA words were “used” at school celebrations. She stops short of claiming she specifically “wrote” HBTY. So with Clayton F. Summy unable to prove an interest in renewal and the Hills unable to prove original authorship, the case of The Hill Foundation v. Clayton F. Summy was settled out of court and both parties shared licensing profits.

To recap: due to Summy-Birchard Co.’s failure to properly renew in 1962, GMTA/HBTY would have entered the public domain. If this failure were to be dismissed as an excusable accident, we are still absent any document which proves beyond doubt that Mildred and or Patty Hill, the most plausible authors of the GMTY/HBTA combination, actually wrote it. Absent that proof, WMG only has an interest in the additional copyright matter (piano solo and 2nd verse) registered to Orem & Forman in 1934. While valid, those are separate matters from the GMTA/HBTY combination. A rote, uncreative variation on the earlier work can not be registered as a derivative; there has to be some added originality or editorial insight. The GMTA/HBTY as we know it today appeared regularly in print prior to the 1930s. Neither Orem or Forman’s mostly forgotten additions had any impact on it’s market potential. I believe GMTA/HBTY or simply Happy Birthday to You is currently a public domain work. While this might be the end of the legal story, there’s still for me, a moral complication.

The Association for Childhood Education International (ACEI) was first established in 1892 as the International Kindergarten Union. Co-founded by Patty Smith Hill, their primary efforts were to better the professional preparation of kindergarten teachers. Today the ACEI partners with organizations such as the United Nations and UNICEF to “promote and support…the optimal education and development of children…and to influence the professional growth of educators and the efforts of others who are committed to the needs of children in a changing society.” Seems like something I’d donate to; maybe even score a mug or tote bag in the deal.

Back when The Hill Foundation, Inc v. Clayton F. Summy settled out of court, an affidavit by Hill-trust trustee Alvin J. Burnett stated all rights in Good Morning to All & Happy Birthday to You were then assigned to the Clayton F. Summy Company in 1944 in return for a one-third share of future revenues. Years later in 1985, a lawyer for Summy-Birchard stated “performance proceeds from Happy Birthday to You bring two ‘low six-figure” checks each year to Summy-Birchard and the Hill Foundation.” Royalties rights were passed from the Hill Foundation to the ACEI who’s annual IRS Form 990’s state that for the years 2004, 2005, and 2006, royalty income was $584, 352; $631,866; & $738,510 respectively. $1,954,728.00 in 3 years is no small slice of pie for a non-profit, but its eligibility is called into question by the very case made against Warner Music Group.

A young Patty Hill

A young Patty Hill

As an aside, I suggest reading Agnes Snyder’s 1972 paper for the ACEI, Dauntless Women in Childhood Education. In it, Snyder paints a picture of Patty Hill as a strong, dedicated intellectual who rose from a humble background to become one of the most important voices speaking on behalf of progressive early childhood education in America. After reading it, I became even more convinced the Hill sisters didn’t pen the GMTA/HBTY combination. In all aspects of their professional careers they were articulate and exact. While perhaps it’s not court-worthy evidence, it becomes hard to imagine GMTA/HBTY would have simply slipped through the cracks while their other works received protection through proper notice and registration. It seems more the case that the Hill’s felt entitled to rights due to HBTY’s similarity to GMTA; and as much as I’ve come to respect the Hills I’d stick to the argument that similarity isn’t enough to claim authorship.

I’ll close by humbly pointing out that I am an artist known for making typos, not a lawyer. I believe I’ve presented the general argument correctly but with speed, and suggest readers view both Braunies’ paper and beautiful collection of supporting documents.  If there is a counter-argument, let it be presented scholarly! One thing is for sure, the story of GMTA/HBTY is far from the standard folk-tale. It is a story where the push for participatory culture, pioneering women in education, early studies in African-American musicology, and copyright come together. It leaves us with a looming dilemma: Do we call for a full investigation of the copyright status of Happy Birthday to You with knowledge that its recognition as a public domain work would result in the loss of a major funding source for the ACEI; or does the public find the current arrangement agreeable, in which potentially illegally collected royalties are shared so that 1/3 goes to a respected non-profit and 2/3 goes to the Warner Music Group?

Further Reading:
Copyright and the World’s Most Popular Song
Brauneis’ supporting documents
Association for Childhood Education International
Dauntless Women in Childhood Education BuyPDF

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This entry was posted on Thursday, October 21st, 2010 at 2:04 pm and is filed under Commentary, Copyright, Education, Fair Use, U.S.. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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