The 'Happy Birthday' song could soon be free for you to use

The ‘Happy Birthday’ song could soon be free for you to use

A 1922 copy of "The Everyday Song Book," containing lyrics to "Happy Birthday" is part of litigation to free the often used song from copyright claims because it was published in 1922 -- sans copyright notice -- before it was registered with the copyright office in 1935.

July 28, 2015 8:14 PM PT

“Happy Birthday to You,” the song that has graced billions of birthday celebrations in the last 120 years, is not free for the public to use.

Movies and TV shows, for example, must pay royalties if they include the ubiquitous ditty. Waiters can’t perform it for restaurant patrons without similar permission. If you want to make a ringtone with it, you’re also supposed to cough up some cash.

That all might change soon, depending on the outcome of a court hearing scheduled for Wednesday in Los Angeles.

The publishing arm of Warner Music Group has claimed since the 1980s to have exclusive rights to the song’s reproduction, distribution and public performances. But this week, the attorneys representing a film company that’s suing Warner said they had uncovered proof that any copyright of the song would have expired about a century ago.

The familiar birthday song was born out of an 1893 tune titled “Good Morning to All,” written by sisters Mildred J. Hill and Patty Smith Hill. The lyrics were: “Good morning to you / Good morning to you / Good morning, dear children / Good morning to all.”

That song eventually evolved into “Happy Birthday to You.”

Good Morning to You Productions Corp. filed the class-action suit against Warner/Chappell Music Inc. in 2013, arguing that the song belongs in the public domain. The suit said the film company, which was making a documentary about the song, had to pay Warner $1,500 for a license to use it.

The plaintiffs’ attorneys now say that Warner recently turned over documents that contain what they called a “proverbial smoking gun”: In 1922, the attorneys said, the song was published in “The Everyday Song Book” without a copyright claim.

Mark Rifkin, a partner with the law firm representing the plaintiffs, argues that Warner could not have acquired the copyright because there were “no copyrights to be owned.”

“Under copyright law in 1909, that publication, without a claim of a copyright, extinguishes any federal copyright to the song,” Rifkin said.

Warner does not agree.

The company says it bought the song’s rights when it purchased Birch Tree Group in 1988, the successor to the Clayton F. Summy company that previously held the rights.

In an eight-page court document filed Tuesday, attorneys for Warner say the songbook does not prove the expiration of a copyright. They say records show that in 1935, Summy “sought and obtained” license to publish the songs from Jessica Hill, who had inherited part of Mildred Hill’s rights to the song.

“Summy would not have had to secure a license from Jessica Hill if it already had the rights to ‘Happy Birthday to You’ or if the work had fallen into the public domain,” Warner’s filing reads.

Warner’s attorneys could not be reached Tuesday for comment.

Arguments for summary judgment in the case are scheduled to take place Wednesday morning.

Times staff writers Ryan Faughnder and Christina Littlefield contributed to this report.

Follow @JamesQueallyLAT for breaking news.

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