“Happy Birthday” is (presumably) now copyright free

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Updated on December 10, 2021

A federal judge has ruled this week that Warner Bros. has no claim to the copyright on the lyrics for “Happy Birthday To You,” the ubiquitous birthday song. The full details of the case and the history of the song are written up in this Variety article. The actual tune has been in public domain since 1949.

For years, Warner Bros.’ music arm, Warner/Chappell, has been collecting royalties (supposedly about $2 million a year) on the use of the song in various media. Thus, there’s been a shift to trying to avoid the use of “Happy Birthday” in movies and TV shows, as well as at restaurants, to avoid paying royalties. This means a lot of awkward (or just plain awful) newly made-up birthday songs, as well as heavy usage of “For He’s a Jolly Good Fellow.” Hopefully this ruling means an end to such, as entertaining as a few of the made-up songs might’ve been.

Note that while there’s now no official copyright holder of the lyrics (and barring some attempt by WB at overturning the ruling), that doesn’t mean the song is officially in the public domain. The song may be an example of an “orphan work,” or a creative item for which the copyright and its holder can’t be determined or found. The Digital Reader discusses this aspect. The US Copyright Office is currently trying to find a solution to the orphan works problem. The Electronic Frontier Foundation (EFF) feels that someone would’ve likely come forward and sued Warner/etc. by now, if the song really did have a valid existing copyright holder.

That said, I expect to see a big rise in the public (and filmed) use of “Happy Birthday” anyway, thanks to the “it’s public domain!” perception/lack of awareness of the concept of orphan works. Meanwhile, Warner is now open to the possibility of a lawsuit by individuals to reclaim the fees they’ve (wrongfully) paid for using “Happy Birthday” all these years.

The whole case, of course, draws attention to the ludicrous nature of US copyright laws, including their ridiculous lengths that only benefit corporations (and Disney in particular), as well as the problem with orphan works. The unfair length issue is outlined in this CGP Grey video.

Anthony Dean

Anthony Dean is the owner of Diverse Tech Geek and Diverse Media Notes.

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