Free 'Happy Birthday'!

We’re reprinting this column from 2013, about the fight to release the ubiquitous “Happy Birthday” song, along with an exciting update—“a real Perry Mason moment,” as Oakland attorney Daniel Schacht puts it.

Schacht is a partner in Donahue Fitzgerald, the local law firm (known as Donahue Gallagher Woods until 2014) that has been working to bring the song into the public domain.

A birthday party at Fairyland in 1953.

The breakthrough came from a discovery in a songbook originally published in 1922.

The Warner Music Group, which claims to hold the copyright on the song, had attempted to blur a key line on one page of the 1927 edition of the songbook, but Daniel and lawyers for two New York law firms working for the plaintiffs tracked down the original. The line that had later been blurred gave permission to use the song. That means that if the copyright was not renewed 27 years from the original copyright date of 1935, the song would belong to the public domain.

It was not renewed.

George H. King, chief justice for the U.S. District Court, Central Division of California, now has a couple of options: He can make the decision to free “Happy Birthday” himself, or he can ask each side to provide further evidence. If the verdict is that the song is in the public domain, then a class-action suit is anticipated.

Rupa Marya, the singer mentioned in my 2013 column, pays $1 per CD for the rights to “Happy Birthday.” A Hollywood film producer might pay six figures. How far back can the suit go? How much money are we talking about?

Daniel Schacht says that there’s no way of knowing how quickly Judge King will act on the case, but a lot of restaurants, clubs and party venues—not to mention Children’s Fairyland—now have reason to be optimistic that someday soon they can sing “Happy Birthday” loudly and proudly ... and without paying.

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Once upon a time— in 1893, to be exact—Mildred and Patty Hill wrote a song they called “Good Morning to All.” The two sisters, both of whom were schoolteachers, meant their song to be a classroom greeting for kindergartners.

Over the decades, the song became much better known as “Happy Birthday to You.” And now an Oakland law firm is arguing that it should be freely sung by all, with no copyright fees due when your Uncle Hal sings it to you on a YouTube video or at the local park.

This year at Fairyland, we’ll host about 6,000 kids and adults over our prime birthday party season. This being Oakland, it’s a very diverse crowd in terms of age, ethnicity and socioeconomic background. No matter who they are, our guests joyfully join together as families and a community to sing the song that is as American as apple pie. Fairyland pays a blanket fee to BMI and ASCAP, the two biggies in the music licensing world, which covers public usage of all songs at the park.

The circus party area at Fairyland today.

But for Rupa Marya, it was a different story.

Rupa and her group, The April Fishes, are based in San Francisco; they perform songs in a mixture of international musical styles and in a number of languages. When the band recorded “Happy Birthday to You” at a live show for use as part of a live album, they heard from a company called Warner/Chappell (the publishing arm of Warner Music Group), which claimed that it alone owns exclusive rights to the song, and was therefore owed $455 for the usage.

Marya decided to challenge that fee. In an upcoming class-action suit testing the validity of Warner/Chappell’s copyright, she’s represented by the law firm of Donahue Gallagher Woods, which has been in Oakland for 95 years. In addition to technology clients such as Autodesk, Intuit, Sybase and Symantec in copyright cases, the firm also has a roster of music clients, including Carlos Santana and the bands Journey and Phish. The firm has decided to represent Marya, one of three plaintiffs in the suit that seeks to make the song “Happy Birthday” free to the world.

Donahue attorney Andrew MacKay was as surprised as anyone to learn the “pay to play” aspect of the song. His second reaction? “Almost a sense of outrage,” he recalls. He and two of his Donahue colleagues are teaming up with two other law firms to consolidate their cases and begin a legal process in the next week or so. It promises to be a long battle against Warner/ Chappell, which currently collects more than $2 million a year in “Happy Birthday” fees. “That’s an awful lot of money to collect for a work they didn’t create,” MacKay points out.

Here’s the gist of the three main arguments that McKay says Donahue will make on behalf of his client. First, there is no evidence that the Hill sisters actually combined the “happy birthday” words and melody of the song. Second, the copyright for the decades ago.

The third argument is that Warner’s renewal of the copyright in the 1960s was limited to a particular arrangement of the song, and not for the song itself, which means the song is properly in the public domain.

Warner/Chappell has not indicated any interest in settling, and the case could take years to play out. But, says MacKay, “We’re prepared to fight it to the end.” If the plaintiffs prevail, they’ll be asking for refunds to everyone who has paid licensing fees during at least the four years prior to the complaint. If the case is lost, the current system will stay in place until 2030 or longer.

In a 1999 press release, the American Society of Composers, Authors and Publishers (ASCAP) announced that “Happy Birthday to You” was “far and away” the most popular song of the 20^th century. The Guinness Book of World Records has deemed “Happy Birthday to You” to be the most frequently sung song in English.

A recent birthday party at Fairyland. (Photo via Oakland Chamber of Cmmerce.)

The song’s copyright issue gained greater attention when the wide release of the acclaimed civil rights documentary “Eyes on the Prize” was halted for a number of years, in large part because of charges that needed to be paid for footage of a group singing “Happy Birthday to You” to Martin Luther King, Jr.

“We all care about this case deeply,” says MacKay. “It just seems wrong that a company would look to profit off a song like this. This is the type of case where you can really make a difference in the lives of a lot of people.”

And, he adds, “We believe we’re on the right side. Let’s free 'Happy Birthday'!” 

- C.J. Hirschfield


C.J. Hirschfield has served for 14 years as executive director of Children’s Fairyland, where she is charged with the overall operation of the nation’s first storybook theme park.