The Economics of Everyday Things - 14. “Happy Birthday to You”

Episode Date: August 14, 2023

The most popular song of the 20th century — and a key part of a ubiquitous American ritual — was also the subject of a years-long legal battle. Zachary Crockett blows out the candles.

About a decade ago, Jennifer Nelson was working in the trenches of reality television. I was a producer at MTV and I was working on a popular show called My Super Suite 16. It was about lavish over the top birthdays for wealthy kids and they would spend hundreds of thousands of dollars on these birthday parties and arrive in helicopters or, you know, have elephants on display. Early on, she got a confusing mandate from her boss. My producer was like, you can't film anybody singing the happy birthday song. Just don't do that. And I was like, what do you mean? This is a show about birthdays, and we can't sing the happy birthday song. Everybody on the crew always thought it was so dumb,

but nobody really looked into it. So Nelson decided to look into it herself. And she found out something that blew her mind. The song, a song that you and I have sung hundreds if not thousands of times, a song that forms a critical part of an American ritual, it was the property of one of the world's largest music publishers. To use it, her show would have to pay thousands of dollars in licensing fees. I just thought it was nuts. I was pissed, too. Life doesn't that song belonged to everybody.

The more Nelson looked into the history of the world's most familiar song, the more she realized that the story she'd been told about its ownership was questionable. For the Freakonomics Radio Network, this is the economics of everyday things. I'm Zachary Thracke. Today, happy birthday to you. The American Society of Composers, Authors and Publishers, that's ASCAP for short. Well, they once called it Far and Away, the most popular song of the 20th century.

But before the world, New Happy Birthday, the tune was just an obscure little ditty. It came from the American Heartland. The American Heartland was a very popular song, the tune was just an obscure little ditty. It came from the American Heartland. 130 years ago in Louisville, Kentucky, two sisters named Patty and Mildred Hill wrote songs for children. Songs that were simple, repetitive, and easy to sing. Patty was a kindergarten teacher, and what

are these songs in particular caught on with her students? It was called Good Morning to All. Patty and Miltred filed for a copyright on the sheet music in 1893 and printed it through a publisher named Clayton F. Summy. The sisters were very conscious of copyright, so no question, good morning to all, with that combination of the tune we know is happy worth it to you and the words good morning to all. That song was under copyright from 1893 till 1949. That's Robert Brannis. He's a professor of intellectual property law at the George Washington University Law School. And in 2010, he published an article titled Copyright and the World's Most Popular Song. It also covered some interesting history. Sometimes during the 1890s, good morning to all, started being sung with the words Happy Birthday to you.

At the time, children's birthday parties were a relatively new phenomenon. Happy birthday to you became the song for the occasion. By the 1930s, basically everyone in the United States knew that melody and associated it with the Happy Birthday to you words. In 1935, the Clayton F. Summy Company printed multiple versions of Happy Birthday to you. And it registered its own copyright claims on the song, giving partial ownership to the Hill Sisters. This is sheet music, and so this is not just the melody and the words. This is usually a piano accompaniment

with chords and bass lines and the like. And at the time, I think all they really thought that they were doing was copyrighting the arrangements which they could. But if somebody creates a new arrangement of a very old song, that arrangement could be considered a new work that's placed under copyright. Even if the original melody is in the public domain pretty soon I think they realized that they could start charging for use of the song and

Nobody would challenge them and that just became a little gold mine Anytime anybody saying the song for whatever reason and these were in context that we would find odd today, but were popular then, for example, Western Union had a singing telegram service. And as you can imagine, happy birthday to you was a very popular singing telegram. And there were estimates that in the first five years, it had been sung as a telegram a million and a half times. Song appeared in dozens of movies and cartoons, like Mickey's birthday party in 1942, which you're hearing right now. By the 1970s, it was bringing in more than $75,000 a year in licensing fees. Some of these assets changed hands a few times over the years.

And in 1988, its parent company was sold to Warner Communications for $25 million. As a part of the deal, Warner acquired the rights to 50,000 songs. But the real jewel of the catalog was happy birthday to you. Many people were singing it in public and many people were incorporating it into movies and television shows and the like and they were all paying a lot of money for that privilege. Warner aggressively enforced the song's copyright. For very large budget movies, the way that fee is negotiated is that you request permission to use happy birthday to you in your movie. And the owner of copyright sends you a sheet and says, well, what's the budget for the entire

movie? You tell it, well, it's $500 million. And then they say, well, $50,000 is not a very large fee in comparison to your full budget. So let's try to get $50,000. And anyone who wanted to sing the Happy Birthday Song in public for profit was liable to pay anywhere from a few hundred to a few thousand bucks. And of course, restaurant chains came up with alternative birthday songs to avoid the necessity for paying royalties for happy birthday to you.

Restaurants like Chuck E. Cheese. But if a big corporation like Chuck E. Cheese was going to give up on using the original song that everyone knows? How could a single documentary filmmaker make a difference? That's coming up. By the late 1990s, Happy Birthday to you was making Warner an estimated $2 million per year in royalties. Some of that came from Jennifer Nelson, the filmmaker. After learning about the copyright, she decided to make a short film called Saving Happy

Birthday. And, of course, she needed to feature the song. I bought my own license for $1,500 to be able to use it. In the course of her documentary research, Nelson came across that article by Robert Brannis. He wrote this long article saying, if anybody challenged this copyright claim they would surely win. He felt like their claim to the copyright was weak.

And yet nobody had ever challenged Warner's copyright, which was thought to claim to the copyright was weak. And yet nobody had ever challenged Warner's copyright, which was thought to extend to the year 2030. So Nelson did something crazy. It was like, okay, I'm about to punch a gorilla in the face. They're gonna black ball me or smash my kneecaps or something. Nelson decided to sue Warner over the copyright on Happy Birthday to you. A guy named Randall Newman became one of the lawyers on her team. As soon as I researched it, I knew it was going to be huge.

The Hill Sisters wrote a melody, you know, good morning to all. The question was, who wrote the lyrics? Warner claimed that the Sisters had also written the lyrics to wrote the lyrics. Warner claimed that the sisters had also written the lyrics to Happy Birthday to you, and thus the copyright the sisters had sold applied to the entire song. Jennifer Nelson and her lawyers disagreed. We claim that no one knows who really wrote them. They claim that the copyrights covered the lyrics and the melody. We say that they just copyrights on the actual sheet music on the

arrangement. We scoured over a hundred years of history. We did some archival research out in Kentucky where the Hill sisters are from and went through their letters and paperwork and stuff. In 2013, the group filed a class action lawsuit against Warner. On behalf of people who had paid to license the song, under the questionable copyright. I really felt like we were battling for everybody. Every film, every TV show, every birthday party at Applebees. every birthday party at Applebees. In 2015, a federal judge ruled that Warner's copyright claim on Happy Birthday to you was invalid,

and the song was effectively liberated into the public domain. The following year, the court ordered Warner to distribute a total of $14 million to anyone who had paid to use Happy Birthday to you since 1949. For some of those claimants, that was a very big payday. Newman didn't do too shabby either. His legal team was awarded more than $4 million in fees. After the case, Numan liberated a few other popular songs that he believed had been wrongly

copyrighted. He successfully challenged a copyright claim by the Richmond organization. On the gospel song, We Shall Overcome. And in 2018, it went into the public domain. And Jennifer Nelson, well, she got a little something too. Did you get your $1,500 back? I did. What they do send you a check in the mail. Yeah, I'm Zachary Tracket. This episode was produced by Sarah Lilly with help from Lyric Boudich and mixed by Jeremy Johnston. You can see Jennifer Nelson's movie Saving Happy Birthday on our website. Happy birthday dear Jennifer Nelson!

Happy Birthday to you! Nice! The Freakonomics Radio Network, the hidden side of everything! Stitcher Radio Network, the hidden side of everything.