The Hill Sisters’ Claim to Fame

 I remember when the candle shop burned down. Everyone stood around singing ‘Happy Birthday.’ – Steven Wright

We all know it. We all do it. Singing “Happy Birthday” has become a cultural phenomenon. The Guiness Book of World Records has called it the best-known song in the English language. It is sung so often, by so many people, that it is sometimes considered a folk song – something that belongs to everyone.

That’s why quite a few partygoers found it surprising, confusing and downright unfair to learn it was illegal to sing “Happy Birthday” without paying royalties. Well, that was never exactly true unless you were in public, and/or using the song to make money. In fact, it might never have been true at all.

Webpages hang around beyond their expiration dates, causing confusion to linger. Some search results might tell you that the rights to “Happy Birthday” are under litigation, or that the song will fall into the public domain in 2030. Fortunately, it is now in the public domain. Here’s the story.

Mildred and Patty Hill
Mildred and Patty Hill

Happy Birthday’s History

The tune was created by sisters Mildred Hill and Patty Hill. Born in the Civil War era near Louisville, Kentucky, the Hills were raised to be independent women. Patty taught at the progressive Louisville Experimental Kindergarten School, modeled after the Froebel educational movement. Mildred made her living in music by composing, performing, and studying African-American spirituals. She foresaw its influences and wrote texts on the subject under the pseudonym Johann Tonsor. Neither sister married.

“Happy Birthday to You” originated as “Good Morning To All,” intended as a daily greeting. Patty wrote the text and Mildred wrote the melody. The Hill sisters included the song in their 1893 book, Song Stories for the Kindergarten.

1915, it appeared in The Golden Book of Favorite Songs as “Good Morning to You” and referenced Clayton F. Summy Co. as having given permission.1915, it appeared in The Golden Book of Favorite Songs as “Good Morning to You” and referenced Clayton F. Summy Co. as having given permission.

Text Matters

The melody alone would not be enough to copyright the song with its birthday lyrics. It needed a copyright notice after 1923. Patty Hill reported that teacher frequently sang “Happy Birthday to You” in her school’s kindergarten classes. The birthday lyrics were said to have been first published next to the melody in 1924, in a songbook edited by Robert H. Coleman. This was probably a hymnal. I did find “Happy Birthday” in Coleman’s Modern Hymnal of 1926, but not Harvest Hymns of 1924.

In any case, the birthday song became popular and things got murky. After Mildred and Patty Hill died, their younger sister, Jessica, worked with Summy Company to copyright “Happy Birthday” in 1935. It still was not exactly clear, however, who wrote and owned rights to those lyrics.

The Hills would have continued to receive royalties whenever Happy Birthday was used in public and/or commercially until 1991, later extended until 2030. Through a series of acquisitions, Warner Music became owner of the song in 1988, reporting $2 million in annual royalties.

The ‘Smoking Songbook’ of 1922

Copyright attorney Robert Brauneis fully researched the Happy Birthday controversy for his 2010 paper,Copyright and the World‘s Most Popular Song.

Using more than 200 documents from historical archives, Brauneis disputes the Hills’ ownership of the melody and shows that the author of the lyrics was never identified. Even if there was a valid copyright claim, it was not appropriately renewed.

Filmmaker Jennifer Nelson was working on a documentary about “Happy Birthday to You” when she ran into the licensing issue firsthand. To include a clip of the song in her film, Warner Music charged her $1500. In 2013, Nelson and her company, Good Morning to You Productions Corp., filed a filed a class-action lawsuit against Warner/Chappell Music.

Nelson’s attorneys, Betsy Manifold and Mark Rifkin, asked the court to declare the song in the public domain and require Warner/Chappell Music to return decades of licensing fees to those who had paid them.

Rivkin said that as their research continued, Nelson “got madder and madder and madder.” In a statement, Nelson called the song’s fees “shocking” and said, “I hope to return it to the public where it rightfully belongs.”

Then came the bombshell discovery of The Everyday Songbook, published in 1922, with both “Good Morning to All” and the “Happy Birthday” lyrics. The song appears with the same “special permission” of the Summy Company as earlier versions, which isn’t a copyright; and even if it had a copyright, works published before 1923 have fallen into the public domain.

Warner filed a motion in court trying to keep this evidence out of consideration for judgement. Nelson and her legal team were prepared to argue that the defendants had known about the songbook, and deliberately tried to hide it as evidence.

Finally, after three years of court battles, “Happy Birthday to You” was declared to be in the public domain. Warner Music and its affiliates agreed to drop their claims to any future royalties. They also agreed to pay $14 million in reimbursements for past licensing fees. Nelson has a short film available online about the experience, titled Saving Happy Birthday.

There was one exception even before the ruling. You could hum Happy Birthday on Mars, if you were Curiosity Rover. The only reason that had to stop was that it turned out to be too taxing for the little guy’s battery. Check it out.

What does this have to do with Valentine’s Day? Another song by Mildred J. Hill, posted as a new “Idea to Try.”