Bridey Heing
August 07, 2015 1:39 pm

The ‘Happy Birthday’ song — you’ve sung it and you’ve had it sung to you. It’s one of those songs that you probably don’t remember actually learning, and may well have just been born with the lyrics already in your brain. It’s that ubiquitous.

And yet, earlier this week, news broke that might surprise you. As it turns out, “Happy Birthday to You” is not in the public domain, which means every time it plays in a movie or on TV, the owner of the copyright gets a licensing fee. Right now, Warner Music Group owns it, and according to the New York Timesmakes about $2 million a year from the song.

That could be about to change, though. A lawsuit was brought that challenges the copyright, which was granted in 1935. Evidence that the song existed before 1933 would invalidate that copyright, opening the song up to the public. In a songbook from 1922, the lyrics and melody of “Happy Birthday to You” as a variation of the song “Good Morning to All”.

The reason it would invalidate the copyright, which is currently set to expire in 2030 barring any extension, is due to the Sonny Bono Copyright Term Extension Act of 1998. Under the act, things published prior to 1923 entered the public domain — and therefore, “Happy Birthday To You” just barely made the cutoff. What’s more, there’s speculation that the copyright wasn’t properly renewed in 1963, meaning it would have lapsed decades ago. Some even question whether copyright laws in 1922 could have a part to play, particularly if there wasn’t a copyright properly in place way back when.

This one, simple song has become quite a touchstone for the debate about copyright, with many holding it up as an example of why copyright laws needs to be reformed. How can a song that is so much part of the collective culture possibly still be copyrighted? And while it might not seem like too big a deal, the copyright is prohibitive. If a TV show or movie can’t get the money together to pay the fee, they can’t feature the song. Although no one is saying copyright itself is a problem — artists and creators need a way to protect their work, no doubt about it — the fact that it is so difficult for some works, such as this song, to enter the public domain and so easy for them to remain gold mines for corporations long after the original holder of the copyright has passed away is worth questioning.

The judge is expected to rule soon, and could call for a trial. It’s unclear whether or not “Happy Birthday to You” will enter the public domain, but it has started an important debate about the intended and practical role of copyright. So think about that next time you blow out the candles on a birthday cake. Or just think about cake.

(Image via NBC)