The Washington PostDemocracy Dies in Darkness

Surprise! You may soon be able to sing ‘Happy Birthday’ on film without being sued.

Marilyn Monroe sings “Happy Birthday” to President John F. Kennedy at Madison Square Garden in 1962. (Bettmann/UPI)

It is arguably the world’s most popular song: a tune performed billions of times in dozens of countries over more than a century.

It has featured in commercials for Frosted Flakes and Cheerios, automobiles and life insurance. It was the first singing telegram and the most famous tune ever crooned to a sitting president.

It “is quite likely the most sung music in history, including all the output of the three B’s, Beethoven, Bach and The Beatles,” according to the Songwriters Hall of Fame.

It is, of course, “Happy Birthday to You.”

And, like a bottomless, belated birthday cake, it could soon belong to all of us.

That’s because a two-year legal battle over who owns the so-called Birthday Song has taken a sudden twist. New evidence turned over this month by the music company claiming to own the song’s copyright has thrown that very same copyright into doubt.

The evidence — a 1927 version of “Happy Birthday to You” without a copyright — “is a proverbial smoking-gun,” according to a court filing from Jennifer Nelson, the documentary filmmaker who is suing Warner/Chappell Music over the right to use the Birthday Song. “The newly discovered evidence … proves conclusively that Happy Birthday has been in the public domain since no later than 1922.”

At stake is the more than $5,000 per day — or $2 million per year — that singers, stage directors, filmmakers and advertisers currently shell out to use the Birthday Song.

Now Nelson’s lawsuit threatens to upset that order. If her latest motion is successful, it could liberate the ubiquitous ditty once and for all.

“I brought up the issue and the world basically responded,” she said last year. “It went viral. I had no idea that this was going to happen like this. But the consensus is that this is a lawsuit with merit, and that the Happy Birthday song should belong to the public and not belong to a corporation that you have to pay to be able to use this song.”

“There is a dark side to this happy tune,” she said.

But Nelson’s lawsuit, which she launched back in 2013 to great fanfare and was wryly dubbed “a Lawsuit for the Ages” by the New York Times, is by no means the first sour note in the Birthday Song’s long and bizarre history.

In fact, the deceptively simple song has an incredible backstory. Although many parts remain shrouded in mystery, the tale behind the Birthday Song touches upon revolutionary educational advances in America, women’s rights, African-American spirituals and the blues.

“Happy Birthday to You” might not just be the most popular song in the world, but also one of the most important songs in American history.

The song’s controversial origins date back to at least the late 19th century, when a pair of extraordinary sisters claimed to have matched the now famous lyrics with the instantly recognizable tune.

Patty and Mildred Hill were nine years apart: two of six kids born to a Princeton-educated Presbyterian minister. Having lived through the Civil War, when fallen soldiers left behind helpless families, the Reverend William Wallace Hill made sure to educate his daughters, wrote George Washington University Law School professor Robert Brauneis in an article titled “Copyright and the World’s Most Popular Song.”

As a result of their parents’ doting, Patty and Mildred Hill both became brilliant pioneers. Patty became an innovative kindergarten teacher and, eventually, a professor at Teachers College at Columbia University. Mildred, meanwhile, became “an accomplished pianist, organist, and composer, as well as what we would now call an ethnomusicologist,” according to Brauneis.

(After studying African-American music in Chicago, Mildred “almost certainly wrote [using a pseudonym] an article entitled ‘Negro music’ in the journal Music in December 1892, one of the pioneering accounts of African-American music in mainstream American musical literature,” Brauneis wrote.)

Although individually brilliant, the sisters’ combined efforts would leave the biggest impact on the country. In 1889, the sisters began to work together on writing songs for children.

At the time, children’s songs were “so poor both musically and judged from the standpoint of the ability of the child to sing, that it was necessary to discard them,” Patty said. “When my sister Mildred and I began the writing of these songs [referring to ‘Song Stories for the Kindergarten’] we had two motives. One was to provide good music for children. The second was to adapt the music to the little child’s limited ability to sing music of a complicated order. Also, we wished the song to express the idea and the emotions embodied in the words.”

Patty wrote the words and Mildred wrote the melodies.  The sisters then methodically tried out the songs on Patty’s kindergartners to see if they were too complicated or difficult to sing.

One of their first songs was “Good Morning to All,” the melody of which would eventually become the tune for “Happy Birthday to You.”

The song was deceptively simple: the 19th century of what today would be a catchy summer hit pop song.

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“The melody that resulted from such a meticulous process deserves considerably more appreciation than it usually gets,” Brauneis wrote. “A melody that is simple enough to be sung and remembered by kindergarten students, yet within those limits expressive and interesting, is also a melody that adults who are otherwise not musically inclined might also learn, remember, and sing with enthusiasm at a few celebrations every year.”

Although Patty later claimed that she and her sister also tried out the words to “Happy Birthday to You” over the melody, it’s not clear if that’s true, Brauneis wrote. Some claim the sisters borrowed both the words and melody from others, including folk tunes. Others claimed it was the students themselves who mashed up the melody to the Birthday Song, unintentionally creating an American classic.

Either way, the Hill sisters included “Good Morning to All” in an 1894 collection called “Song Stories for the Kindergarten.”

Within 20 years, however, “‘Happy Birthday to You’ began appearing in a variety of songbooks as alternative text for the ‘Good Morning to All’ melody,” Brauneis wrote.

At the time, America was in desperate need of a Birthday Song. “Birthday parties did not become common even among wealthy Americans until the late 1830s; modern birthday cakes emerged after 1850; and peer-culture birthday parties, involving children of the same age as the child whose birthday was being celebrated, emerged between 1870 and 1920, after American urban public schools became age-graded,” Brauneis wrote.

“Thus, the prerequisites for the development of a standard birthday song – the proliferation of birthday celebrations that involved a dramatic moment at which a group of invitees, often children, addressed the honoree — may not have been in place until shortly before ‘Happy Birthday to You’ started to become popular.”

The rest is history. The simple song with the “perfect arch form” spread like wildfire. When the first singing telegram arrived at pop star Rudy Vallée’s doorstep in 1933, the messenger belted the Birthday Song loud and proud. It appeared in two movies in 1937 and never looked back, featuring in at least 141 more, according to Brauneis.

And then there was that famous Marilyn Monroe rendition in 1962, when she seductively serenaded President John F. Kennedy in Madison Square Garden.

Along the way, the song has made several companies a lot of money.

Whether or not the Hill sisters actually came up with the Birthday Song, they quickly lost control of it. Clayton F. Summy, the man who published the sisters’ book, claimed the copyright. From him, it has passed to a series of increasingly large and shrewd corporations.

In 1988, Warner Communications Inc. snapped up the Birthday Song as part of a $25 million deal for 50,000 songs. From there it passed to Warner/Chappell Music, which claims to be the world’s third largest music publisher with more than one million songs.

“For the last two decades, the ownership of Warner/Chappell, and hence of “Happy Birthday to You,” has been a matter of corporate dealmaking at the very highest level,” Brauneis wrote. “Thus, while ‘Good Morning to All’ was first published by a sole proprietor a little more than a century ago, ‘Happy Birthday to You’ has by now become a small stream in the floods of revenue that are reshaped and redirected in the frequent restructuring of enormous corporations.”

Warner has, at times, taken flak for claiming the copyright of such a common song. In 1996, the company — via the American Society of Composers, Authors & Publishers (ASCAP) — threatened to sue the Girl Scouts for publicly performing the Birthday Song, among other popular hits. (ASCAP eventually backed down.)

Girl Scouts aside, no one had really challenged the company’s claim to birthday jingle. Everyone from restaurant chains to movie-makers have either paid up or invented their own alternative.

“Many restaurant chains, including Red Lobster, Outback Steakhouse, and Romano’s
Macaroni Grill, have developed birthday songs of their own in part to avoid having to
purchase live music performance licenses from ASCAP,” Brauneis wrote.

One civil rights documentary, “Eyes On The Prize,” faced a fierce legal battle because it featured footage of people singing “Happy Birthday To You” to Martin Luther King, Jr.

[A Struggle for Rights: ‘Eyes on the Prize’ Mired in Money Battle]

“Did somebody sing ‘Happy Birthday’ in your documentary? Too bad — you owe Time Warner a small fortune,” complained the Center for Social Media at American University in a November 2004 report.

In 2013, a Jennifer Nelson, an X-Games downhill mountain biker turned documentary filmmaker, set out to make a movie about the Birthday Song’s long and twisted saga.

Naturally, Nelson wanted to feature people singing “Happy Birthday to You” in her documentary. Warner/Chappell told her it would cost the standard $1,500.

Nelson initially ponied up. But then she changed her mind.

“When I was doing my research about the film, I realized that the copyright claim, Warner/Chappell’s copyright claim to the song is a little bit sketchy,” she said.

So she sued.

“I felt that there was legitimate reason to take action and not just let this be an industry joke,” she continued. “So here I am. My ‘Happy Birthday’ movie about the song has evolved into a movie about saving the song. You know, I don’t really consider myself an activist because I’m not really. I’m a bit of a reluctant activist. I just saw something that was inherently wrong and we all joked about it and laughed about it and didn’t do anything about. But then I realized we could do something about it and I did.”

For the past two years, Nelson and her company, Good Morning to You Productions, has been battling Warner/Chappell in California district court.

The two sides had largely rested their cases and a judge was prepared to deliver a ruling this summer. But then, on July 13, Warner/Chappell handed over 500 pages of documents that it said it had “mistakenly” failed to turn in a year before.

The documents included an “illegibly blurred” image of the Birthday Song from a 1927 publication called “The Everyday Song Book” that the plaintiffs had never seen before.

That led Nelson and her legal team to scramble to find an earlier version of the book.

Deep in the archives at the the University of Pittsburgh, they found a 1922 version. This copy was clear: the song had been printed with “special permission” from Clayton F. Summy Co. — but no copyright.

Calling the evidence “a proverbial smoking-gun,” Nelson is now claiming that the book “proves conclusively that there is no copyright to the Happy Birthday lyrics.”

Warner/Chappell “should admit defeat but they won’t because too much money is at stake,” Randall Newman, one of Nelson’s attorneys, told the Hollywood Reporter.

Responding in court, Warner/Chappell denied “hiding that or other documents or proceeding in bad faith” and said that the “special permission” given to publish the song in 1922 does not amount to a waiver of its copyright.

Judge George H. King will consider the new evidence during a hearing Wednesday.

Warner/Chappell has promised it “will be prepared to address these issues further.” Nelson hasn’t commented publicly on the latest twist in the century-long legal battle over the Birthday Song.

Win or lose, however, her legal saga is sure to make a dynamite documentary.

“We’ll see what happens,” she said last year. “We are currently litigating. We are currently making the movie. And I don’t know the outcome.

“It’s been a really wild ride.”