Copyright and the World’s Most Popular Song Table of Contents
Introduction………………………...... 1 I. “Good Morning to All”: An Appreciative History ...... 4 II. The Emergence and Triumph of “Happy Birthday to You” ...... 15 III. The Copyright Status of “Happy Birthday to You” ...... 22 A. Some Necessary Analytical Framework ...... 23 1. Derivative Works ...... 23 2. Copyright Under the 1909 Act ...... 24 B. The Original Term: The 1935 Publications ...... 25 1. Authorization and Authorship ...... 26 a. The Myth of a Court Ruling ...... 28 b. Evidence of Authorship ...... 29 i. The Patty Smith and Jessica Hill Depositions ...... 29 ii. Earlier Published Versions ...... 31 iii. The 1934-35 Registrations and Publications ...... 33 iv. Later Published Versions ...... 36 v. Statements in the Hill Foundation Complaints ...... 37 vi. Popular Accounts of Authorship ...... 38 vii. A Summary ...... 40 2. Publication with Notice...... 40 C. The Renewal Term ...... 44 1. Summy-Birchard’s Eligibility to Apply for Renewal ...... 45 2. The Sufficiency of the Renewal Applications ...... 48 D. Epilogue: Copyright and Ownership During the Renewal Term ...... 55 IV. Lessons From The History Of “Happy Birthday to You” ...... 57 A. The Risks of Anecdotes ...... 58 B. Barriers to Challenging Copyright Validity ...... 59 C. The Effects of Copyright Owners’ Failure to Enforce ...... 62 D. Recordkeeping and Tracking in the Copyright Office ...... 65 V. Conclusion……………...... 68
Electronic copy available at: http://ssrn.com/abstract=1111624 Copyright and the World’s Most Popular Song
Robert Brauneis
When Justice Breyer protested Congress’s 20-year extension of the term of copyright in his dissent in Eldred v. Ashcroft,1 he chose one song to emphasize what was to his mind the already overly generous protection of copyright law: “Happy Birthday to You (melody first published in 1893, song copyrighted after litigation in 1935), [the copyright of which is] still in effect and currently owned by a subsidiary of AOL Time Warner.”2 The example, even in that brief form, is a powerful one. “Happy Birthday to You” is a simple song that most people have learned by hearing it performed by family and friends, and many probably assume that it is not under copyright at all. 1893 is a long time ago – 106 years before Eldred was decided. And, for those who are unsympathetic to and suspicious of large corporations, AOL Time Warner – now just Time Warner – is one of the largest media and entertainment companies in the world.3
The newspaper article to which Justice Breyer cited, and others like it, recite a standard “Happy Birthday to You” anecdote that just seems to make the example more powerful. “Happy Birthday to You” started out life as “Good Morning to All,” a song with the same melody but different words, “written as a classroom greeting by two . . . teachers . . . who were sisters,”4 namely, Mildred and Patty Hill. This adds some element of authorship – the song is not just a folk song – but it suggests that the authors were not professionals, and more or less stumbled across the song while teaching, as it turns out,