Last March we published a list of the 10 richest songs of all time. Specifically, we looked at the 10 highest royalty producing songs of all time, but "richest" sounded a lot better. Many readers were shocked to learn that the highest royalty producing song of all time is "Happy Birthday". More than anything, people were shocked to find out that Happy Birthday, the same song you have belted out hundreds of times throughout your life, is in fact copyrighted and not part of the public domain. In other words, every time you sing the song at a birthday party, you technically should pay a royalty to the copyright holder. Recently, Happy Birthday's copyright status has come into question thanks to a class action lawsuit filed by a New York filmmaker named Jennifer Nelson. Jennifer is suing current copyright holder Warner/Chappell Music for $50 million and is demanding that they repay every royalty it has ever collected off the song. But how exactly did Happy Birthday become a privately owned, copyrighted song in the first place? The full history is fascinating.
The origins of "Happy Birthday" date back to 1893, when a pair of sisters named Patty and Mildred Hill co-wrote a song called "Good Morning To All". The sisters were also school teachers and they soon introduced the song to their kindergarten class. Their students loved the song so much that Patty and Mildred decided to include it in a book they were co-writing called "Song Stories for the Kindergarten". By publishing the book with the song, melody and lyrics, the sisters took the first and most basic step required for securing a copyright.
In reality, it's likely that at the very least the song's melody was not an original Mill sister production. There were several songs at the time that pre-date "Good Morning To All" that shared a very similar tune and lyrical structure. A few examples include songs called "A Happy New Year to All", "Good Night to You All" and "Happy Greetings to All". But the Hill sister's version is the one that gained national popularity.
At some point, the kindergarten students began singing the whenever someone celebrated a birthday. It is generally believed that the students can be credited with changing the lyrics to "Happy birthday to you" as we know it today. Over the next thirty years, "Happy Birthday" became the standard song to sing at a birthday celebration all across the United States. Around this time, an entrepreneur named Clayton Summy purchased the song rights from the Mill sisters for a nominal amount of money. In 1935, Summy instructed a pair of song writers named Preston Ware Orem and Mrs. R.R. Forman to officially write and publish the melody and lyrics to Happy Birthday as we know it today. At this point, Clayton Summy formed a new company called Birch Tree Group Limited to protect the copyright of Happy Birthday. Between 1935 and 1989, Birch Tree Group Limited worked to enforce its copyright on all public performances of Happy Birthday. Any time the song was performed publicly or for profit, Birch Tree Group would get a royalty or licensing fee.
In 1990, Birch Tree was acquired by entertainment conglomerate Time Warner for $15 million (roughly $27 million in 2013 dollars). In 2004, the music publishing arm of Time Warner, Warner/Chappell Music, was acquired by a group of investors led by billionaire Edgar Bronfman, Jr. Today Warner/Chappell charges $10,000 – $25,000 for the right to use their song one time in a movie or television show. This explains why you often see movie characters sing an odd, custom-written version of a birthday song on screen. It also explains why chain restaurants frequently sing their own versions a birthday song when they crowd around your dinner table. As crazy as it sounds, it is technically illegal for a large group of unrelated people to sing Happy Birthday publicly (like at an office party) without paying a royalty to Warner/Chappell. I can't even write out the song's full lyrics within this article!
Today, Warner/Chappell earns an estimated $2 million per year ($5500 per day) from royalties and licensing fees related to "Happy Birthday". Over its lifetime so far, Happy Birthday has generated an estimated $50-100 million in royalties. Even if you use the conservative $50 million estimate, that's more than enough to make Happy Birthday the most profitable song of all time. The second most profitable song is Irving Berlin's "White Christmas" from 1940, which has generated $36 million in royalties. But all that might change if a New York filmmaker named Jennifer Nelson has her way.
In June 2013, Jennifer Nelson filed a lawsuit in New York claiming that Warner/Chappell's copyright is 100% invalid and that Happy Birthday belongs to no one. As part of a documentary about the song's origins, Jennifer claims to have gathered a mountain of evidence that proves beyond a doubt that the song actually entered the public domain as early as 1920. If she is successful, Warner/Chappell could be forced to payback all of the royalties ever earned by the song. As we mentioned, that amounts to a minimum of $50 million and could be as much as $100 million. If Warner/Chappell can successfully defend their copyright, "Happy Birthday" will not become public domain in America until 95 years after the first copyright. In other words, 95 years from 1935 which is 2030. The song will enter the public domain in the European Union in the year 2016. It will definitely be interesting to see how this plays out. If Jennifer Nelson wins, we should all celebrate by singing some song…