Why They Don't Sing Happy Birthday
The Law Lags + AI Copyright and the Public Domain
Apropos to AI, whose dominant enforcement vector is over Copyright and defended by claims of Fair Use or the content being in the Public Domain…
Is the curious case of “The Happy Birthday Song” Even though you have likely sung or heard this song hundreds of times, you likely have never given its legality much thought.
And yet yours truly tried to explain to waiter and Manager at Chuy’s during one family event in 2024 that it was perfectly fine to sing it, as the song was in the public domain. Yet I did not make a sale myself.
I use this story to demonstrate several things:
Copyright, as all law, is subject to interpretation by fallible and scared humans and organizations. What is so one day may not be so the next. It hinges upon facts presented and of course court challenges and subsequent rulings.
The aggregate public understanding of what the Law is is often skewed and mostly (especially in the corporate setting) pre-loaded to “err on the side of caution.” This isn’t bad per se as an enterprise risk strategy, yet how much does it hurt development. Both laypeople and even skilled corporate counsel can self-deceive to avoid imagined “risks.”
Misunderstanding of the Law can create unhappiness and prevent much happiness.
Since AI is developing at the speed of light, this matters greatly, especially to a lawyer and ai founder such as myself.
The Copyright Saga of the "Happy Birthday" Song: Cease and Desist Letters to Restaurants, Public Domain Reality
For decades, the simple tune of "Happy Birthday to You" was anything but free to sing in public settings.
Owned by Warner/Chappell Music, the song's alleged copyright led to enforcement actions, including demands for royalties and cease and desist letters, particularly affecting restaurants where birthday celebrations often involved group singing.
Origins and Copyright Claims
The melody of "Happy Birthday to You" originated from "Good Morning to All," a children's song written by sisters Patty and Mildred Hill in 1893.
Under the 1909 Copyright Act, for earlier (pre-1978) registrations the Act gave the author rights to ownership for an initial 28 years and then renewable for 67 years or for a total of 95 years if renewed).
1893 + 95 (years) = 1988
But wait, there’s more - LYRICS! Lyrics are a separate creation.
The familiar birthday lyrics appeared in print by the early 20th century, but it wasn't until 1935 that the Clayton F. Summy Company registered copyrights for specific piano arrangements of the song.
1935 + 95 (years) = 2030
[SEE THE DATE? -!] In 1988, Warner/Chappell acquired the rights as part of a $25 million deal.
Warner/Chappell claimed the copyright extended until 2030 [SEE THE DATE? -!] and valuing the song at $5 million.
Enforcement and Impact on Restaurants
Warner/Chappell aggressively enforced their copyright, requiring licenses (and paid ROYALTIES, which is the price of a music license) for any public performance where the audience wasn't limited to family and close friends.
This included movies, TV shows, radio broadcasts, and live events.
For instance, filmmakers for the 1994 documentary *Hoop Dreams* paid $5,000 to use the song. 5K is “nothing.”
Restaurants, where servers often sang to patrons during birthday celebrations, were particularly vulnerable.
Were these gatherings “limited to family and close friends”? One could say yes, the staff are not included in the family gathering. One could say no, they are the performers/singers and so are surely part of the ‘performance.’
To avoid hefty royalties—sometimes as high as $700 per use—many chains created their own alternative birthday songs or forbade the traditional one altogether.
Warner/Chappell sent cease and desist letters or demanded payments for unauthorized uses, creating a chilling effect that prevented free singing in commercial settings.
Note: “Chilling effect” is a legal term of art. What it means practically is that FEAR to go near a lyric or song was created in the public mind. The real fear even pertained to ‘similar songs’ and so there was less singing overall.
As a result, diners at places like chain restaurants might hear awkward, proprietary jingles instead of the classic tune - here is Applebees’ :
The Lawsuit and Public Domain Ruling
The copyright's validity came under scrutiny in 2013 when filmmaker Jennifer Nelson filed a class-action lawsuit against Warner/Chappell, arguing the song belonged in the public domain.
Supported by research from law professor Robert Brauneis, who in 2010 concluded the copyright was likely invalid, mostly due to the failure to properly renew the copyright for BOTH COMPONENTS OF the song itself (the combination of the "Good Morning to All" melody with the "Happy Birthday to You" lyrics) when its initial 28-year term expired in 1963.
On September 22, 2015, U.S. District Judge George H. King ruled that Warner/Chappell's claim only covered specific arrangements, not the lyrics or melody themselves, effectively placing the song in the public domain.
IN OTHER WORDS, their copyright ONLY COVERED their lyrics and their melody together and EITHER the lyrics OR the melody were in the public domain!
Effectively, as a matter of law, this reversed the prior “chilling effect” giving license to use both together because no one any longer held rights to each of them.
In 2016, Warner/Chappell settled for $14 million, refunding past licensees, and the court officially declared the song public domain on June 28, 2016.
Current Status and Legacy
Today, "Happy Birthday to You" is firmly in the public domain in the United States and the European Union (where the EU copyright expired on January 1, 2017).
Restaurants can now sing it freely without fear of legal repercussions, ending an era of contrived alternatives.
Nevertheless, old fears and corporate restaurant training procedures die hard. Also, that some over-cautious companies’ counsel could fear an enforcement for EITHER the melody OR the lyrics since even though W/C only held for their specific composition, “why take the risk.”
And so there I was in Chuy’s over creamy jalapeno ranch trying to inform on the law.
“Let’s sing.”
How many songs in AI are presently not being sung due to the chilling effect of the large litigations over copyright which are presently underway?