It is common knowledge among Indy filmmakers that you don’t put the singing of “Happy Birthday” into your script unless you’re willing to fork over buckets of money for the rights. This little ditty was written almost a hundred and fifty years ago. Don’t artistic works fall into the Public Domain after a period of time? I’ve heard that it’s 75 years after the author’s death. What gives?
The more-than-a-century old song is “Good Morning to You”.
Someone published a songbook with the same melody and the words “Happy Birthday to You”.
The resulting lawsuit culminated in a new copyright for “Happy Birthday” assigned to the holders of the copyright on “Good Morning to You”. Since this happened after 1923 (the current de facto Public Domain date under current law for the next 11 years), the “Happy Birthday” copyright has enjoyed the benefit of every extension Congress has passed since.
Under current law (barring another extension), Happy Birthday is under copyright protection until at least 2030.
Or you can get it closer to home.
So does this mean that although the lyrics are still protected by copyright, the melody is now public domain? Could we sing “Good Morning To You” in a movie without paying?
Yes, you could. You could also make up your own birthday-related lyrics to the same melody so long as they aren’t substantially similar to the copyrighted ones.
“You’re turning old-er
You’re turning old-er
Oh how does it fee-eel
To be one year more?”
It’s gold!
“Happy Natal Anniversary to you
Happy Natal Anniversary to you
You have the odor of a Small Simian
And you resemble one in appearance as well.”
This raises an interesting question. How much would I have to pay to put Happy Birthday in my movie? It can’t be that much? But enough to discourage it apparently.
And which costs more, “Happy Birthday”, or “Birthday” by the Beatles*?
*has that ever been used in a movie or TV show, btw? Can’t recall offhand, but that’s what we always used to sing for Bdays in high school.
What about:
Dum-de-dum-dum to you
Dum-de-dum-dum to you
Dum-de-dum-dum to what’s-your-name
Dum-de-dum-dum to you
I notice the absence of “Happy Birthday” most at what commercials call “family-style restaurants” (Applebee’s, Ruby Tuesday’s, etc.), where they come out and serenade you on your birthday, if you ask. They don’t sing “Happy Birthday”, but some other, sometimes in-house, song. I’m assuming they do this because otherwise they’d have to pay somebody rolaties, somehow.
Incidentally, I claim copyright on those words, so if you plan to use, please see my agent about my very moderate royalty fees.
We sang “Happy Birthday to You” when I worked at Cracker Barrel, around 1998. I always wondered how they got away with it without paying royalties. Maybe that was the least of their legal problems.
Mark Steyn offers the opinion that the creation of a second copyright for “Happy Birthday to You” was dubious:
He also says,
I’m not sure how many thousands of dollars it takes to discourage a big-time movie studio, but apparently “many” is enough.
Sometime shortly after that, the chains all stopped doing it, presumably because Warner Chappell decided it infringed on the copyright. Since singing the song would be done in part to encourage you to spend money at that establishment, one can see the connection.
What day is today?
It’s Nibbler’s birthday,
What a day for a birthday,
Let’s all have some cake!
(and you smell like one too!)
Which makes me wonder, how much money does Warner-Chappell make from the rights to Happy Birthday if they charge so much for using the song that not even a major film studio will include it?
It seems fairly pointless to own a copyright to something that you’re never making money from, wouldn’t it make more sense for Warner-Chappell to come up with a more reasonable amount of money in exchange for letting people use their song?
I can imagine a major studio which has a prominent birthday scene would be willing to pay say, $5,000 for the rights to use the song in a single scene. That’s essentially free money for Warner-Chappell, and they really must charge a ridiculous amount to use it since I can’t even think of an example of it being used in a television show or movie (although I’m sure there is one out there.)
In the last ten years or so, ASCAP, the largest license fee collecting service in the music industry, has stepped up its efforts to collect proper royalties on public performance of songs and recordings. This includes stores, restaurants, and even summer camps.
In 1996, they sued the Girl Scouts for failure to pay royalties on copyrighted material performed publicly at their camps. Like at campfires and stuff.
I believe there’s also a rule in place that you don’t have to pay royalties on copyrighted music played in your store if you actually sell the music you play, in which case the performance is advertising for the sale from which royalties shall be derived. ASCAP didn’t go after that money as fiercely as they have more recently.
Which is why Starbucks sells CDs.
Here’s a recent article from a site aimed at bookstore managers about the last part of my post there.
And the new song is then copyrighted! (The lyrics, anyway).