'Happy Birthday' song - it's still under copyright

Should the classic ditty "Happy Birthday to You" be freed at last?

A hearing in California federal court on Wednesday inched the idea forward. But District Judge George H. King was not prepared to blow out all the candles, let alone rule, on newfound "smoking gun" evidence supporting the music's long-a-coming liberation.

Arguably the most familiar song ever written, "Happy Birthday to You" may be the first tune you learned as an infant, and is likely the last song you'll recall in dotage. Not a second goes by when it's not being heartily sung somewhere on Earth.

Yet you hardly ever hear "Happy Birthday" performed on TV, except, perhaps, when someone's riffing comically on the classic Marilyn Monroe coo of the tune to JFK.

And at a high profile birthday party spot like Chuck E. Cheese, the tune gets totally snubbed. As the cake comes out, the staff rushes in to loudly voice an alternative "happy-happy-happy-to-you-you-you" lyric and tune. Plenty peppy, but not the real thing.

The reason is that this ultrafamiliar, 19th century composition remains under copyright protection, with ownership claimed and regularly defended by the huge music publishing house Warner/Chappell.

As such, you can't legally perform the tune or lyrics in public, can't play a recording in public (even if you own the CD), or distribute the music or lyrics free or for no profit, without duly paying the piper.

"I often tell my entertainment and sports-law students at Temple Law that I'd trade everything I have - all the gold and platinum records, all my worldly goods - for the copyright to that one song," said Philadelphia-based show business attorney Lloyd Zane Remick.

Billboard magazine reported that this "cash cow" reaps Warner/Chappell $2 million a year in revenue. TV shows and filmmakers fork over "as much as six figures" to license use of the tune in a project.

But the party could soon be over.

A filmmaker doing a documentary on the origins of "Happy Birthday to You" and engaged in a legal battle with Warner/Chappell over payments due filed legal papers Monday citing newfound evidence that "proves conclusively that there is no copyright to the 'Happy Birthday' lyrics."

If successful, Jennifer Nelson and her Good Morning to You Productions Corp. would have a heck of an ending to their film (à la Miracle on 34th Street).

Written by Kentucky progressive–education-minded schoolteacher Patty Smith Hill and her sister Mildred Hill as a morning greeting for students, the song's original title was "Good Morning to All." The rights were first assigned to a music publisher in 1893 - 122 years ago, reports Billboard.

Who wrote the birthday-focused lyrics has never been determined, but Warner/Chappell has always contended that its subsequent 1935 registration covered rights to the words and a piano arrangement.

The new evidence - 1922 and 1927 editions of The Everyday Song Book that were "mistakenly" held back by Warner/Chappell and found in the archives of the University of Pittsburgh - shows the "Happy Birthday" lyrics without any copyright notice. That establishes, say the plaintiffs, that the lyrics were "dedicated to the public years before the copyright registration that Warner/Chappell is relying upon was made." The song publisher isn't opposing the introduction of the evidence, but is challenging whether the books were published with proper authorization.

"Normally, a copyright holds for the life of the songwriter plus 70 years," said Remick. As the longer-surviving Patty Hill died on May 25, 1946, all rights to the tune should expire next year.

"But if Warner/Chappell can prove the lyrics and arrangement were written on assignment as 'work for hire,' their copyright would hold for 100 years," added the attorney.

In that scenario, "Happy Birthday" could be held captive for 20 more years.

So, until the court rules, be careful (ca-ching) where you sing it.

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@JTakiff