July 21, 2008— -- The Guinness Book of Records calls it the most popular song in the English language. It has been sung to popes and presidents, and incorporated into nearly 150 movies. It was featured in the world's first singing telegram. And during the Apollo 9 mission, it became the first song performed in outer space
Everyone knows the words to "Happy Birthday to You." What few people know is that the song is owned by a private company, and that it is copyrighted.
Use it for any commercial purpose, and you are supposed to pay up, says George Washington University School of Law professor Robert Brauneis.
"If you want to sing it at your home at a birthday party you don't have to pay anything, because that is a private performance," he said. "But if you want to use it in a television show, a movie, or a television commercial, you'll pay anywhere from $5,000 to $30,000 for those rights."
Turns out this humble little ditty is a cash juggernaut, generating approximately $2 million in royalties every year, Brauneis said.
After a series of purchases and acquisitions, the song is now owned by Warner Music Group, through its publishing arm, Warner/Chappell. It collects royalties for everything from happy birthday ring-tones to e-cards that play "Happy Birthday to You."
The Girl Scouts once were warned they would have to pay a fee if campers sang it. Even restaurants are supposed to pay, which is why some chains have their waiters sing alternative birthday songs that require no rights payments.
But Brauneis has just written the definitive history of the song, and he concluded that no one should be paying anything.
The story begins with sisters Mildred and Patty Hill, kindergarten teachers in Louisville, Ky., who wrote "Good Morning to All" in 1893.
The same melody, with new lyrics, was copyrighted in 1935 as the "Happy Birthday" song known worldwide today. But there is a problem.
"There is no evidence that these two sisters wrote those particular words," Brauneis said. Who wrote the lyrics "is a mystery," he said, adding it even is possible that children in the Hill sisters' school might be responsible.
The murky authorship is one of several defects Brauneis said he has uncovered that likely would invalidate the copyright if the matter ever landed in court.
Another of those weaknesses, he said, was the failure of the song's owner to properly renew the copyright in the early 1960s. The copyright on various arrangements of the song were renewed, but not on the standard "Happy Birthday to You" version, he said.
Warner Music receives the bulk of the royalty payments. Both Hill sisters died unmarried and childless, and their stake in the song eventually passed to a nephew, but he has since died.
The family's share of royalties now flow to the Association for Childhood Education International, a tax-exempt organization, Brauneis said.
Warner/Chappell insists the copyright is solid, until it expires in 2030.
"Through the years, there have been many copyrighted compositions such as 'Happy Birthday to You' that have become part of America's cultural fabric. And the ability of artists — authors, composers, lyricists and other creators — to be compensated for their copyrighted work is a cornerstone of the American economy and culture," Warner Music spokesman Will Tanous said.
"The copyright to 'Happy Birthday to You' remains in full force under U.S. and international copyright law," he said.
Even if the company is on shaky legal ground, it probably will not lose its copyright, Brauneis said. It's cheaper for users of the song to pay royalties than to fight in court.
"I think there are substantial enough weaknesses in this copyright that a court more likely than not would find it not to be under copyright, that it is in fact in the public domain," Brauneis said.
"Yet it never gets into court because of the problems of mounting a challenge, And due to those problems we have people paying what amounts to $2 million a year or so into the coffers of Warner/Chappell," Brauneis said.
And so a simple six-note song will continue to be big business for years to come.