# How can "Happy Birthday" not be in the Public Domain?
**URL:** https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819
**Category:** Factual Questions
**Created:** [June 21, 2007, 6:49am UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819 "2007-06-21T06:49:48Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@Pel2na](https://boards.straightdope.com/u/Pel2na)
#### Post date: [June 21, 2007, 6:49am UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819/1 "2007-06-21T06:49:48Z")
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?
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### Author:  [@scotandrsn](https://boards.straightdope.com/u/scotandrsn)
#### Post date: [June 21, 2007, 7:06am UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819/2 "2007-06-21T07:06:31Z")
[QUOTE=Pel2na]
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?
[/QUOTE]
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.
[The full story from Snopes](http://www.snopes.com/music/songs/birthday.asp)
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [June 21, 2007, 3:51pm UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819/3 "2007-06-21T15:51:53Z")
Or you can get it [closer to home](http://www.straightdope.com/columns/000728.html).
---
### Author:  [@jackdavinci](https://boards.straightdope.com/u/jackdavinci)
#### Post date: [June 21, 2007, 5:39pm UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819/4 "2007-06-21T17:39:37Z")
[QUOTE=scotandrsn]
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”.
[/QUOTE]
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?
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### Author:  [@friedo](https://boards.straightdope.com/u/friedo)
#### Post date: [June 21, 2007, 6:20pm UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819/5 "2007-06-21T18:20:55Z")
[QUOTE=jackdavinci]
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?
[/QUOTE]
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.
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### Author:  [@MovieMogul](https://boards.straightdope.com/u/MovieMogul)
#### Post date: [June 21, 2007, 7:20pm UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819/6 "2007-06-21T19:20:16Z")
[QUOTE=friedo]
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.
[/QUOTE]
“You’re turning old-er
You’re turning old-er
Oh how does it fee-eel
To be one year more?”
It’s gold!
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### Author:  [@CalMeacham](https://boards.straightdope.com/u/CalMeacham)
#### Post date: [June 21, 2007, 7:32pm UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819/7 "2007-06-21T19:32:15Z")
“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.”
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### Author:  [@Procrustus](https://boards.straightdope.com/u/Procrustus)
#### Post date: [June 21, 2007, 7:48pm UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819/8 "2007-06-21T19:48:58Z")
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.
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### Author:  [@MovieMogul](https://boards.straightdope.com/u/MovieMogul)
#### Post date: [June 21, 2007, 8:53pm UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819/9 "2007-06-21T20:53:11Z")
[QUOTE=Procrustus]
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.
[/QUOTE]
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.
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### Author:  [@Giles](https://boards.straightdope.com/u/Giles)
#### Post date: [June 21, 2007, 9:26pm UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819/10 "2007-06-21T21:26:54Z")
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
---
### Author:  [@CalMeacham](https://boards.straightdope.com/u/CalMeacham)
#### Post date: [June 21, 2007, 9:32pm UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819/11 "2007-06-21T21:32:29Z")
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.
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### Author:  [@Giles](https://boards.straightdope.com/u/Giles)
#### Post date: [June 21, 2007, 9:37pm UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819/12 "2007-06-21T21:37:45Z")
[QUOTE=Giles]
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
[/QUOTE]
Incidentally, I claim copyright on those words, so if you plan to use, please see my agent about my very moderate royalty fees.
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### Author:  [@Zjestika](https://boards.straightdope.com/u/Zjestika)
#### Post date: [June 21, 2007, 10:26pm UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819/13 "2007-06-21T22:26:42Z")
[QUOTE=CalMeacham]
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.
[/QUOTE]
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.
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### Author:  [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)
#### Post date: [June 21, 2007, 11:08pm UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819/14 "2007-06-21T23:08:54Z")
[QUOTE=scotandrsn]
The resulting lawsuit culminated in a new copyright for “Happy Birthday” assigned to the holders of the copyright on “Good Morning to You”.
[/QUOTE]
Mark Steyn [offers the opinion](http://flyunderthebridge.blogspot.com/2007/04/golden-them-thar-hills-sisters.html) that the creation of a second copyright for “Happy Birthday to You” was dubious:
> [@](#):
>
> Warner Chappell’s grip on “Happy Birthday To You” has never been tested in court, in part because they’ve got the deepest pockets in the world and you haven’t. But it rests on the curious proposition that there are two entirely different songs: “Good Morning To All”, a copyrighted song whose copyright has expired and is in public domain, and “Happy Birthday To You”, a copyrighted song that remains in copyright and is eminently enforceable. And they’re both written by the same people. This is a very bizarre interpretation of law . . . But do you want to spend a gazillion dollars telling that to Warner Chappell?
He also says,
> [@](#):
>
> If you want to use “Happy Birthday” in a movie or TV show, they’ll charge you many thousands of dollars for the privilege, which is why it hardly ever happens.
I’m not sure how many thousands of dollars it takes to discourage a big-time movie studio, but apparently “many” is enough.
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### Author:  [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)
#### Post date: [June 21, 2007, 11:14pm UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819/15 "2007-06-21T23:14:16Z")
[QUOTE=Zjestika]
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.
[/QUOTE]
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.
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### Author:  [@GuanoLad](https://boards.straightdope.com/u/GuanoLad)
#### Post date: [June 22, 2007, 6:50am UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819/16 "2007-06-22T06:50:45Z")
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!)
---
### Author:  [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)
#### Post date: [June 22, 2007, 7:06am UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819/17 "2007-06-22T07:06:18Z")
[QUOTE=Freddy the Pig]
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.
[/QUOTE]
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.)
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### Author:  [@scotandrsn](https://boards.straightdope.com/u/scotandrsn)
#### Post date: [June 22, 2007, 7:59am UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819/18 "2007-06-22T07:59:07Z")
[QUOTE=DSYoungEsq]
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.
[/QUOTE]
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.
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### Author:  [@scotandrsn](https://boards.straightdope.com/u/scotandrsn)
#### Post date: [June 22, 2007, 8:04am UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819/19 "2007-06-22T08:04:53Z")
[Here’s a recent article](http://news.bookweb.org/features/3403.html) from a site aimed at bookstore managers about the last part of my post there.
> [@](#):
>
> Additionally, if you sell pre-recorded music in the store, you may be exempt from licensing fees in certain circumstances. Section 110(7) of the Law states that a vending establishment is exempt from paying a license fee “where the sole purpose of the performance is to promote the retail sale of copies or phonorecords of the work, or of the audiovisual or other devices utilized in such performance, and the performance is not transmitted beyond the place where the establishment is located and is within the immediate area where the sale is occurring.” 17 USC § 110(7).
>
> It goes without saying that this section of the law is vague, since “immediate area” is not a defined term in the Act. Representatives of each performing rights organization contend that this means that the playing of pre-recorded music is only exempt if it is played right where the music is being sold and is for demonstration purposes only (e.g., Virgin Megastore’s listening posts) – not piped in throughout the whole store as background music. On the other hand, it could easily be interpreted as meaning that the playing of pre-recorded music is exempt as long as it is audible in the same room or area where the music is being sold and as long as the music is from a CD or record that the store actually sells and has in stock.
---
### Author:  [@scotandrsn](https://boards.straightdope.com/u/scotandrsn)
#### Post date: [June 22, 2007, 8:09am UTC](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819/20 "2007-06-22T08:09:30Z")
[QUOTE=friedo]
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.
[/QUOTE]
And the new song is then copyrighted! (The lyrics, anyway).
[Next page](https://boards.straightdope.com/t/how-can-happy-birthday-not-be-in-the-public-domain/408819.md?page=2)