Happy Birthday to… No Copyright?

This is Stephanie of IMS.


I’m sure you’re familiar with this one: Happy birthday to you, happy birthday to you! Happy birthday, dear… well, you probably know the rest. The Happy Birthday song is one of the most popular and well-known songs in our time, spanning cultures and continents, but did you know that for the last three decades, it’s been raking in cash for Warner/Chappell Music from royalties alone?


Something to ponder: have you ever been to a restaurant that sang for their customers’ birthdays? Which song did they use? Many restaurant chains created their original own birthday song to avoid a lawsuit for singing a copyrighted song in public without permission from Warner/Chappell Music. And when a single-use royalty fee could cost upwards of $1,500, it’s hard to blame them for getting creative.


But not anymore!


On September 22, 2015, a U.S. copyright judge ruled that Warner/Chappell Music had no right to claim copyright on this widely-used song. Some have estimated that the company made $2 million per year since 1988 (when Warner/Chappell Music started enforcing rights)—but in one fell swoop, the company was told they had no legitimate hold to the song’s copyright at all. (It’s unknown if they will be made to pay back all the royalties previously collected… that’s a lot of refunds!)


The thing about the Happy Birthday song, is that not many people knew it was copyrighted to begin with. It doesn’t matter much now, since it’s been returned to the public domain for a little over two months by this point, but the other thing is: for as long as Warner/Chappell Music was believed to be the copyright holder, they had every right to request fees for use.


Fortunately for content creators, works created after 1978 have automatic copyright protection under current U.S. copyright law, even if the creator does not register with the U.S. Copyright Office. Unfortunately for content users, sometimes this makes determining the copyright owner difficult. Even if something is published anonymously, or the author has died and no heirs can be found, the work is still under copyright, and permission still needs to be granted for use.


Sometimes fair use can apply, especially for academic and non-profit use, but the criteria for determining fair use is not the same across the board. If you’ve made every possible effort to find and contact the copyright holder, and you’re still left with nothing, this does not mean you’re in the clear. Copyright status trumps good-faith efforts, so make sure to weigh your options carefully—including considering substitutions of other material. Material in the public domain, or published with a Creative Commons (CC) license or under open access (OA), is a good place to start.