'Happy Birthday' May Soon Be Yours to Sing Without Fear of a Lawsuit

There’s a reason that fine restaurants such as The Olive Garden don’t sing the traditional “Happy Birthday” to their guests, and you can thank the fact that the song is under copyright for the non-traditional embarrassment you feel while three to five disaffected servers remind you that it’s your “happy, happy birthday” and that they’re “happy that you’re here.” But a new lawsuit is making waves in the copyrighted celebration songs department, and the facts of who owns Happy Birthday has come into some serious question.

Michael E. Miller, writing for the Washington Post, has done an in-depth dive into the history of the birthday song and its current state. Created in a time when “America was in desperate need of a birthday song,” the song now brings in approximately two million dollars a year in revenue for its copyright holder. But new evidence suggests that the song may have actually been in the public domain since the 1920s.

Jennifer Nelson, a documentary filmmaker who brought a lawsuit against Warner when they demanded she pay them for use of the song in her doc about the tune’s controversial history, brought the lawsuit against the company when she realized it made absolutely no sense for one copyright holder to be in ownership of a song so commonly sung. Why should Warner, which had purchased the celebratory ditty in 1988 as part of a lot of 50,000 songs, be allowed to charge people to sing it live? And, according to the Post, it turns out that the song may not even be Warner’s to claim ownership of. In fact, Warner may have bought the rights to a stolen song—the song’s authors, Patty and Mildred Hill (who originally released it as a children’s song entitled “Good Morning To All”) lost control of their song after it was published, and the publisher, Clayton F. Summy “claimed its copyright.”

Here’s what Jennifer Nelson says of her lawsuit:

“I felt that there was legitimate reason to take action and not just let this be an industry joke,” she continued. “So here I am. My ‘Happy Birthday’ movie about the song has evolved into a movie about saving the song. You know, I don’t really consider myself an activist because I’m not really. I’m a bit of a reluctant activist. I just saw something that was inherently wrong and we all joked about it and laughed about it and didn’t do anything about. But then I realized we could do something about it and I did.”

But here’s a new wrinkle: new evidence that Warner’s turned over makes it dubious whether the song was ever copyrighted to begin with. The Post reports that, while the original was published with “special permission” from Clayton F. Summy, there’s absolutely no copyright notice anywhere to be found. Will Warner let this one go? Not so fast, probably—there’s so much money to be lost if they do.

For the rest of the story, as well as a fascinating history of the women who are responsible for one of the most recognizable songs in American history, you can check out the article here. Just don’t get too excited and start singing the song on camera yet. If ASCAP threatened to sue the Girl Scouts for using it, they probably won’t have any qualms about coming after you.