If ‘Happy Birthday’ Was Written In 1893, Why Is It Still Copyrighted?

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The following guest post comes from Charles Duan, an attorney at Public Knowledge.

My two-year-old son Alex loves songs—or rather, he loves one song, “The Wheels on the Bus Go Round and Round.”  The song, of course, involves various parts of a bus doing various bus things.  The wipers go swish, the horn goes beep, and the people go up and down.

This morning, as with most mornings, he started making up his own lyrics, mostly about trains, which reminded me of the ongoing Warner Brothers copyright lawsuit over the song “Happy Birthday to You.”  Although most of the recent news has been courtroom drama about hidden documents and attorney motions, the basic story about the “Happy Birthday” song, one that gets lost in the fog of litigation, is about simple variations of the kind Alex invents.

The story of “Happy Birthday” starts in the 1890s, when two sisters from Kentucky, one of whom was a kindergarten teacher, wrote a song called “Good Morning to All.” The melody was what would ultimately become the “Happy Birthday” song, and the words went like this:

Good morning to you,

Good morning to you,

Good morning dear children,

Good morning to all.

The copyright in this song is dated 1893, meaning that the copyright expired long ago.  “Good Morning to All” is now in the public domain, meaning it may be sung, printed, remixed or put to any use by anyone.

The catchy tune was quickly varied for use as more than a morning greeting. Patty Hill explained that the schoolchildren would use it with the words “Good-bye to you,” “Happy journey to you,” “Happy Christmas,” “Happy New Year,” “Happy vacation,” and, most famously, “Happy Birthday.” The song and its variations were widely popular, appearing in quite a few books in the early 1900s. But, the contention goes, the specific lyrics “Happy Birthday to You” were not set to that tune in authorized, printed form until 1935, meaning the copyright specifically in “Happy Birthday” still persists and will through 2030.

But, you might ask, what does that copyright entail exactly?  It’s not to the tune, since “Good Morning to All” used the exact same tune and the copyright there is expired.  It can’t just be to the change in text, swapping “Good Morning” for “Happy Birthday,” because short phrases cannot be copyrighted.  What remains for copyright, and what is driving the multi-million-dollar Warner Brothers litigation, seems to be just the particular setting and arrangement of that phrase to the existing tune, a simple variation of simple words.

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Which brings me back to Alex and his bus song. Simple variations of simple words are the bread and butter of his toddler world:

  • The wheels on the train go round and round
  • The wheels on the train go train, train, train
  • The train on the bus goes up and down (he was in a particularly abstract mood)
  • The chocolate train goes “let’s go out” (he was hungry and wanted to play)

These sorts of ideas are the domain of playful minds, not of serious charges of piracy and misappropriation that concern federal law. It seems particularly surprising to me that this level of ordinary creativity, experienced by children and adults worldwide, could be at the center of millions of dollars of copyright licensing and complex business transactions.

We know that the “Good Morning to All” copyright has expired. That means that the melody belongs to the public domain, and it is important that it belongs there. The public domain is a vast pool from which future artists may draw in creating new works. The public domain allows for traditional stories and mythologies to grow and evolve, as Shakespeare turned an Italian folk tale into Romeo and Juliet and William Bernstein turned Romeo and Juliet into West Side Story. The public domain permits my two-year-old to rewrite “the wheels on the bus goes round and round” to “the train on the bus goes ‘off we go’” or whatever else his creative toddler mind desires.

The public domain is too important to be shut down based on two obvious words changed in a song.

These big federal rights on little things are a problem for businesses because of the high-stakes lawsuits, but they are more worryingly a problem for culture and society. Copyright on variations of folk songs or stories can fossilize those cultural ideas, preventing them from developing new meanings in step with contemporary developments, and stifling creativity in minds aged one to one hundred.

I doubt that anyone is going to be suing my two-year-old over his “train on the bus,” but what gives me pause is the question of whether our society should sanction ownership in such an idea. I’d prefer a world where my son is free to be creative, free to think outside the box without fear of federal law. I’d prefer a world where, instead, the law openly allows for and embraces the wheels of the mind going round and round.

Top image: ‘The Birthday Party,’ by Walter Osbourne (1900).  Second image by Alan Chia, licensed under Creative Commons Attribution 2.0 Generic (CC by 2.0).

22 Responses

    • Anonymous

      Anyone who has to deal with the unbearable versions every chain restaurant is forced to create.

    • RickyLopez

      Write a catchy song then you’ll find out. Once this is PD (properly) then every 2 bit advert company will be polluting our TV and Radio with knock offs of this.

  1. Curtis Jenkins

    Music business = dirty business and this is no different. This is in the public domain and always has been. But Warner knows how much they need to spend on lawyers and threats to abuse the entire legal and copyright system.

    • Me2

      While the origins and current copyright status of the song can be argued, it most certainly was NOT always in the public doman.

  2. DavidB

    For fuck’s sake, why is DMN giving a platform to Google shill organizations, whose mission in life is to not to limit copyright but to destroy it? Don’t you know or don’t you care?

    • Paul Resnikoff

      Last month, we published a guest post by Public Knowledge advocating greater regulation on music publishing. Two days later, we published a response piece from the NMPA, advocating the opposite. In that piece, NMPA president David Israelite also called out how Public Knowledge is representing themselves.

      The reason I like to air both sides is that DMN’s audience is smart, they can figure out their own opinions. And see through the opinions of others. But this is a forum, it’s important to put it all out there, instead of selectively publishing opinions that I personally like.

      • Anonymous

        “I like to air both sides”

        And so you should. It’s just that some of us perhaps get a bit too sensitive because you sometimes take it a bridge too far and hear both sides in cases where one of them are simply criminals, or advocates for criminals.

        Not saying that’s the case here. I do agree with DavidB though; it’s important to remember that Public Knowledge is a notorious anti-artist organization that’ll always support Big Tech in its war against modern culture.

    • Anonymous

      “why is DMN giving a platform to Google shill organizations”

      The real problem is it could’ve been a useful debate.

      But it’ll always turn into Big Tech vs. Art when it’s based on articles by anti-music organizations, or individuals.

      • Anonymous

        The problem is that Public Knowledge is a complete astroturf group funded by Google- a company that exploits musicians.

        So by throwing them a bone, you are literally creating a tech vs art narrative.

    • Anonymous

      “why is DMN giving a platform to Google shill organizations, whose mission in life is to not to limit copyright but to destroy it?”

      Btw, did you notice that even the Google twins realize that the Google brand is a piece of shit now?

      That’s right: So Google is not Google anymore. Nope. It is Alphabet. And that’s, like, really original, right?

      So all the tens of thousands other companies and organizations and bands and stuff called Alphabet are now pushed fifty pages down in Goo- um, Alphabet’s search engine because Google owns the alphabet now.

      • Anonymous

        It’s actually kind of smart.

        Google is synonymous with evil today, and it’ll probably take us a year or more to learn to hate the alphabet.

  3. Tony The Jet

    Stick with IP law, counselor, and leave Broadway history to the experts– it’s Leonard Bernstein, not William. 🙂

    • DavidB

      Not just Broadway! Leonard Bernstein was one of America’s greatest composers, musicians and conductors of the 20th century. Anyone who could even write ‘William Bernstein’ – while claiming to be concerned for American musical culture – should retreat to a cave and cover himself in ashes for a decade or two.

  4. Um . . .

    >>>I’d prefer a world where my son is free to be creative, free to think outside the box without fear of federal law.

    If the “Wheels on the Bus” song were copyrighted, would the law apply to your son’s creativity? As far as I can tell, he’s not engaged in reproduction, digital transmission or public performance. I suppose he’s created a derivative work, but if he’s not reproducing, digitally transmitting, or publicly performing that work, does that even matter?

    It’s reasonable to argue that “Happy Birthday” should be in the public domain. It’s an irresponsible exaggeration to suggest that its legal status affects what kids can do at home.

    • Troglite

      @Um. Agreed. What I find REALLY disturbing is that the author clearly understands enough about copyright laws to know this portion of the article is a fabrication. This implies that the author intends to create confusion by distorting the facts in a self serving manner. Members of the DMN community have enough practice to spot this type of bullshit, but an average consumer could easily misinterpret this as a legitimate threat to their freedom or privacy.

  5. Paul Resnikoff

    Incidentally, ‘Happy Birthday to You’ is also sung in Latin American countries (and maybe Spain, I’m not sure) as ‘Feliz Cumpleaños a Ti,’ with the same melody. I always thought that was interesting, and spoke to how amazingly far-reaching and attractive this simple song is.

    But the best factoid I think is that before the early 1900s, nobody sang this song! Of course there were birthdays, but what did we sing? It’s such an ingrained part of our lives, it’s hard to imagine life otherwise.

  6. Jose Fritz

    Acknowledging that the public domain exists, and that it has legal precedent is not “destroying copyright.” That’s a didactic point of view. The idea of copyright is that somethign can be created and then owned but not for eternity. The song is 125 years old. That’s older than radio broadcasting bubbeleh.

  7. Chris Daniels

    Wow, “who the fuck cares” ????

    May I suggest laying off the Red Bull? Probably a bad idea as I’m sure you will turn that firehose on me.

    While a sad overreach on WC’s part – it represents millions of dollars and is a pretty interesting case. Why? Two reasons.

    1) From the article with a slight revision – “The question remains, is our society served by laws that allow for ownership of an idea.”

    2) The copyright case in the 1930s (I believe) over Melancholy Baby – in which the original words were changed by the publishing company – the court ruled that the music was written with the express purpose of having words – thus meant to be a “joint work” – music and words (not one that comes from getting baked) and therefore the publisher who owned the song had the right to alter those words.

    The first question is more relevant – I suggest watching “Copyright Criminals” – it’s free on Youtube and it really presents both sides of the issue well. My other suggestion is to watch more than four different Ted Talks on the issue of copyrights and idea ownership.

    It’s complex, writers, songwriters, artists = create. Is ownership of that creation exclusive?? The law “limits the monopoly” that these creators have through things like “the compulsory license” that allow others to “perform” (play and record) a song after it has had “first use.” But so far the law and the courts have ruled that “sampling” is theft and not the creative alteration of an existing piece of recorded material or the song lying within that recording. (ruling that samples are “derivative” and therefor not subject to the “compulsory” exception to the limited monopoly of the copyright)

    Those are just a tiny part of the issues discussed in the Ted Talks and Copyright Criminals. One other point. The publishing company is not Warner Brothers … it’s Warner Chapel Music … kind of the same but really different.

    As for the Red Bull, god I hope you don’t have to drive in traffic. — it’s a joke my friend.

  8. Happyy

    So many laws are useless i dno’t know why they were made!!