SYMHC Classics: The Story of 'Happy Birthday to You'

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Speaker 1: Happy Friday. The song Happy Birthday to You and whether a person could sing it as part of a public performance came up in our recent episodes on Irving Berlin and Irving Berlin is part of our much older episode on the history of that song and it's copyright, So we thought we would bring out our Happy Birthday episode as Today's Saturday Classic, and as an update, a federal judge did rule that this song is in the public domain in the United States, in so waiters can sing it in restaurants now without having to pay to license it, contrary to what was going on in when we recorded this. We noted at the end of the episode that an effort to get Happy Birthday into the public domain could be legally very messy, and it sure was. It involved a class action lawsuit and a fourteen million dollar settlement by Warner Chapel Music, which agreed to pay back years of licensing fees as part of this whole thing. This episode originally came out April, so enjoy Welcome to Stuff You Missed in History Class a production of I Heart Radio Hello, and Welcome to the podcast. I'm Holly Fry and I am Tracy Vee. Wilson, and today we're going to talk about a thing that everybody knows. Yes, uh, everybody knows the song Happy Birthday to You, pretty much everybody. Even if you don't sing it for whatever reason, you probably know how it goes. I don't enjoy it at my birthday. I would rather people saying you're older than you've ever been and now you're getting older. Oh yeah, that one's fun. Thanks. They might be giants. Mine is mostly a problem of people start Happy Birthday too high, and then when they get to that third line, they really have to stretch, and everybody sounds a little dicey. Mine is that I don't like to sing in front of other people. Well I don't, and I'm very self conscious about my voice and whether I am off key. Yeah, well that's a whole other bollow ax for me. I'm singing does not happen in front of other people. But so Happy Birthday to You is one of the three most popular songs in the English language, and it's been translated and published in so many other languages. But sometimes people are still surprised that this song is actually protected under copyright and cannot be singing in a public performance without paying royalties. It's one of those things that we hear so often that surely it must be in the public domain. No, it is not. It is not. Uh. It came from a place, it was written by people, and uh, you know, so we wanted to kind of examine the history of it and where this simple little tune came from and why waiters can't sing it in restaurants right. Well, and that's it's a thing that people can easily interpret as ridiculous that you can't sing happy Birthday, Like that's one of those this is a dumb legal requirement thing that people will say. So, yeah, how did we get to this point? Well, and for clarity and um, talk about it a little bit more towards the end when we talked about the current legal state of examination around it, uh and copyright law. You can't sing it at a birthday party that's considered a private affair. You just can't sing it for a public performance anytime you would directly or indirectly be profiting from it, etcetera. You can't put it in your movie, correct without licensing it. So Uh. The sisters behind the song, Mildred J. Hill and Patti Smith Hill, were actually the daughters of Presbyterian minister Dr William Hill, and he actually founded the Bellwood Female Seminary. And their mother was Martha Hill, who studied college courses through private tutoring at Center College, but she was never granted a formal degree because of her gender. And they actually had an interesting family. They had six children, So there was Mildred Jane who was the eldest. She was born in June of eighteen fifty nine, Mary Downing Hill who was born in eighteen sixty four, William Wallace Hill born in eighteen sixty six. Patty, the other sister Germaine to this songwriting story, was born in March of eighteen sixty eight. Archibald Alexander was born in eighteen seventy one, and Jessica Matteer, the youngest who also factors into this story, was born in eighteen seventy four. So we have two parents, six children, and what was really a pretty progressive approach to raising children at the time. The Hills encouraged their children to play. They encouraged free play and independent thought and exploratory learning. Um so it wasn't a lot of children should be seen and not heard here read this book They were much more into their children being active and creative, and they also encouraged their daughters to pursue careers, which was not unheard of but was also not super common at the time. UH and the two sisters that wrote Happy Birthday actually went on to really interesting careers with their own. Patty Smith Hill became a very renowned educator, and she's really recognized for pioneering some new approaches to early childhood learning, and she's actually often credited with shaping the modern kindergarten as we know it. Her sister, Mildred J. Hill, was an accomplished music scholar and a composer. She wrote several pieces on the importance of Negro spirituals as a corner stone of American music. UM and she's believed to have written a groundbreaking analysis on the subject under the pen name Johann Tonsor. We'll put a link to that article in our show notes. So that was under a pen name. Not a hundred percent sure on the identity of the person who wrote it, but it's believed to be the work of Mildred J. Hill. But their legacy really is for most people, the Happy Birthday to Youth song. UH and The song didn't quite start as a birthday celebration song. So it started when the sisters were both teaching in Louisville in nine and at that point, Patty had just gotten out of school and was just starting her job teaching, and the two originally conceived of a song, UH, which is a little ditty called good Morning to All that would be sung as a classroom greeting with the very simple lyrics of good morning to you, good morning to you, good morning, dear children, good morning to all. I remember singing this in preschool, except we didn't say all at the end. We just said you another time. I think a lot of UM students did similar things. Uh and Patty wrote the lyrics and Mildred wrote the music to it, and their good Morning song was published in a song book called song Stories for the Kindergarten in And it's one of those things that I think people here and they're like, that's a really simple song. Can you really claim anybody wrote that? But you can. It's simple, but it's designed to be because they were trying to come up with tunes could teach children UM music very easily, Like a kid can repeat that song having heard it only once or twice at the most right, it does not take long to learn Happy Birthday to you, and it actually is a little deceptive in its simplicity. This is one of my favorite things that I learned about Happy Birthday and this whole outline that Holly has has given to me today. Stephanie Anne Goldberg, who was writing for the Smart Set and republished in The Utney Reader In pointed out that the song it really has a subtle complexity to it, and to quote her, maybe you never realized it, but inside the Happy Birthday song is a waltz reminiscent of the Blue Danube waltz. You can alternate singing the two as you dance to get a better sense of their similarity. That delights me. Is pretty cool. I did not realize ever, having been singing, you know, Happy Birthday for thirty something years, but it's a waltz, and she in um in her article, which is another one that will link to in the show notes, she kind of talks you through how to do the box step and count the numbers so you can do them at the same time, which I did not test, but it made sense in my head as I read it as like a kind of envision doing now and now, now I really want a happy birthday polka because you can also you can. It's not just it's a step from waltz to polka. I guarantee there's a recording of it. Impolca has to uh. And the beauty of such a simple tune as well is that it's really easily adaptable, which is why, for example, your school growing up, change the lyrics a little bit, because a lot of people do. Uh. And after the song's publication in it became popularly used in education, and it did evolve, uh. You know, teachers could easily switch out words, and it also kind of changed to become a way for students to greet their teachers, rather than the apparent initial intent of the lyrics, which was sounded much more like a teacher greeting students. But it kind of took on a life of its own in the education realm at the time because again, it was easily adaptable. So unlike today, when the song was first published in eightee, there was no public performance right for musical compositions. Composers didn't have any kind of legal right or recourse to prevent other people from performing their music, they could only prevent other people from printing and selling sheet music. So as CAP, which is the American Society of Composers, Authors and Publishers, which is the organization that deals a lot with these kinds of music rights, wasn't founded until nineteen fourteen, So in eight the whole question of who can sing Happy Birthday and where was not really a legal question. Well, and it wasn't happy birthday yet, so it was good anighting at that point. Still, so when exactly Good Morning to all transitioned from being a classroom greeting to a birthday standard is actually not clear. At some point a second stanza, the happy Birthday to you lyrics that we all know, began appearing in publications of the song. The first known book including the combination is The Beginner's Book of Songs, which was published by a piano manufacturer company, the Cable Company, in nine twelve, and it was later republished by the Cable Company in the One Best Songs and probably in some other editions of those two books. Now it also appears in some other places, though, is the two stands a Good Morning and Happy Birthday versions. The first of these is The Golden Book of Favorite Songs, which was compiled and edited by N. H. H in nineteen fifteen, and the other is The Children's Book of Praise and Worship, which was published by the Warner Press in ninety eight. And there are several hymnals and compilations that were edited by Robert H. Coleman as well uh throughout those years that include both stanzas and there's also there's actually been some debate about whether Coleman wrote the Happy Birthday lyrics. Um Robert brown Eyes, who will talk about a lot in this podcast, wrote a paper called Copyright in the World's most Popular Song and he mentions in his arata page for the article that Coleman's grandson has actually asserted that his grandfather penned the lyrics, but since those lyrics had been published as early as nineteen twelve, which is long before Coleman's compilations, it seems a little bit unlikely. However, a lot of articles on the subject seemed to incorrectly cite nine songbook that Coleman edited as the first appearance of the second stands of Birthday greeting. But brown Eye has really he's pretty much a Happy Birthday scholar at this point, and he has unearthed these um like the Cable company publications and some of these others where it showed up. So it doesn't really seem likely that um Coleman actually wrote that stanza, although in his own notes brown Eyes mentions it's there's very simple words. It's entirely conceivable that he wrote them, but that they already existed, Like two people could have come up with those same lyrics. Right. I love that we live in a world where so one can be the happy Birthday scholar. He's really done a great deal of research on it. Yes, So thanks to radio and talkies, the Happy Birthday version of the song became really popular. It's sort of filled a nature of birthday celebration songs. Yeah, there really wasn't another to the best of my knowledge prior to that. There doesn't really seem to be another now except for they might be Giants, which we just talked about, which is only a replacement if you're a nerd. Well, and there's a version from the Simpsons that I like to sing, but that's completely different, and I think it's only on there because they didn't want to pay the licensing to do Happy Birthday. Uh. But By the time the song was becoming a standard part of birthday celebrations. We should note that Mildred was already deceased. She died at the age of fifty six in June of n uh But as the song's popularity expanded, it started showing up in films and plays, and it was actually even used for Western unions first singing telegram. So the song was kind of taking on a life of its own as the Happy Birthday song right and then, as often happens, people kind of realized that their work was being appropriated without them being compensated for it. So Jessica the Sister, the third Hill Sister, stepped in after in nineteen thirty four when the song appeared in the Irving Berlin musical as Thousands Cheer, with no credit or compensation going to Patty, who was at that point the surviving of the two sisters who had created the song. So Jessica wanted to ensure that her sisters received credit for their creation and any compensation they would doue and so in August of n four she actually filed suit against Broadway producer Sam Harris and then eventually also named in that suit was his production company, the composer Irving Berlin, and the playwright Moss Heart that worked on his Thousands Cheer, and the case never got to judgment. It kind of petered out. They didn't pursue it, but it did get into the deposition stage, and both Jessica and Patty gave depositions. And this is a snippet of Patty's deposition. So do you want to read Patty's march the little role play? So Patty said, while only the words good Morning to all were put in the book, we used it for goodbye to you, happy journey to you, Happy Christmas to you, Happy New Year to you, Happy vacation to you, and so forth and so on. Did you also use the words happy birthday to you. We certainly did with every birthday celebration in the school. So Patty was establishing that when they were using this as a teaching song back in the Good Morning to All days, they were completely changing up the lyrics as needed to fit virtually any occasion, because again they were still using it to teach children, and it was easily easy for children to repeat back right. So Jessica testified that while there were many version of the lyrics, to her sister's song. She particularly remembered singing good morning to all and Happy Birthday to you. And as I said, the case seems to have petered out. There was neither a judgment nor a settlement, and it actually came up later in additional copyright discussion that the case could be revisited. But despite the fact that it kind of got put on pause at this point, Jessica went ahead and secured the copyright to Happy Birthday to You in late nineteen four and then she worked with the Clayton F. Summi Company of Chicago to publish and copyright the tune is Happy Birthday in nineteen thirty five. So at the time, copyright laws would have given them at twenty eight year term plus one renewal of the same length, and that would have seen the song move into public domain in but copyright law has changed through the years, so much so in the Copyright Act of nineteen seventy six, the law was amended to grant copyright for seventy five years after the date of publication, which then would have moved the expiration to Then the passing of the Copyright Term Extension Act added in another twenty years to the copyright, so that time now extends to and what's interesting now is to kind of see where the ownership has landed on this song. A few years after the Clayton f. Sumi Company published and copyrighted it, a New York accountant named John Singstack purchased the company and renamed it Birch Tree Limited. In Warner Chapel purchased Birch Tree, which then became Semmy Birchard Music. Summy Birchard is Time as part of Time Warner, which makes Happy Birthday a part of the Time Warner Groups holdings. Uh So, now royalties for performances of Happy Birthday are actually split between Time Warner and the Hill Foundation. Jessica Hill died in eighteen fifty one, so royalties for Happy Birthday have since been paid into the Hill Foundation Trusts, which she established as part of her will. And this is the part that to me becomes the pivotal moment in the whole You can't sing happy Birthday is it's Time Warner is a big company. How does an enormous company to own something as simple as Happy Birthday to you? So? Patti Smith Hill died eleven years after Happy Birthday was copyrighted, which was on ma that was her death, that was when she died. Neither she nor Mildred had married or had children. And who receives the Hill Foundation's money isn't disclosed anywhere, but it's believed that it goes either to charity or to the Hill's nephew, or maybe a split between the two of them. And it's estimated that the rights to the song are licensed approximately two hundred times per year, and that's on a sliding payment scale, kind of like what your audience reaches and what you're likely to make off of it will determine how much they charge you to perform it in public. But it brings in roughly two million dollars annually, which I think is a little mind boggling. It is is, and it makes me wish I had written a four line song that could be licensed by everyone all the time. UH. And there have been a number of legal actions through the years to enforce their rights to Happy Birthday. UH. And if any of our listeners ever watched the show Sports Night, they actually had an episode about it where one of the characters sang it to his co host on the broadcast, not knowing that it was a copyrighted piece, and then of course lawyers got involved and there was much um incredulous talk of no, really that's copyrighted. But but the legality involved in this song has actually come into question in recent years. So going back to the work of Robert browne Ie and his paper copyright in the World's most popular song, and just to establish sort of his credentials, he's the co director of the Intellectual Property Law Program, he's co director of the Deean Dinwoodie Center for Intellectual Property Studies, and he is a member of the managing board of Munich Intellectual Property Law Center, all of that at George Washington University or the first two. And he has really questioned the legitimacy of this copyright. So she's, you know, a law professor who studies copyright law specifically, and he has, like we've said, really become a scholar on this matter. His work is impeccable in terms of like the records he keeps will link to all of this so you can really follow along his research that he's gone through through the years. And he even his errata page online gets updated constantly with when people have written in with other pieces of the puzzle or things that they have heard that can be verified about sort of things that have happened along the way with Happy Birthday. Those all get updated, it seems quite constantly. So it's a really fascinating read, particularly if you are into law. So in addition to being the Happy Birthday scholar, he's also essentially an expert on intellectual property and is actively looking at this all the time, and he makes the case that the song is really similar to folk music that predated it. To quote part of his paper, he says, Moreover, many have suggested that notwithstanding the attribution of the song to the Hill Sisters, it is so much like other previous songs that it should be treated as having arisen from a folk tradition rather than the creative talents of a particular author. And in some cases they even link that back to Mildred's expertise in negro spirituals and how she studied folk music extensively, and how clearly that's feeding into her writing of this, because that first piece that she wrote theoretically as Johan Tonsor was Happening, that was published very close to the time that this song was also published. So there's some discussion there right. Brown Eyes also points out that there's no clear authorship of the Happy Birthday lyrics, So while Patty said in her deposition that they sang the Happy Birthday version of the song, it's never explicitly stated that she wrote those exact words. And he also draw attention to the fact that he's never been able to find a renewal to the copyright. He has found filings for other specific arrangements of the music, but this suggests that the tune wouldn't have qualified to benefit from the extension afforded by the Copyright Act of nineteen seventy six, so that they had actually kind of dropped the ball. Someone had dropped the ball on their end in terms of that initial twenty eight years and a renewal that was allowed. The renewal never that it didn't happen. If it ever did happen, we don't have a clear documentation of that, right. So Rowney's research is extremely thorough. He finds all kinds of flaws in the life of the composition and all of its various layers, apart from the major one of not being able to find the original renewal of the copyright. So He's pointed out lots and lots of problems in its copyright status, and don't worry about it. As we said, you could still sing it at a private birthday party because that's not considered public performance and nobody's making money off of you singing happy birthday to your friend. Right and in uh the errata that Browne's mentions, he says that there's a gray area even for waite staff at a restaurant performing this song for guests. Some people have argued, like that's an extra thing. It's not something those people are being paid for, like you're not paid performers. He points out that you could consider that an indirect profitmaking thing because it's like a value add to your meal. Um. But in most establishments air on the side of caution. And that's why when you go out to you know, your friendly neighborhood or chain bar and grill, they sing like a really weird custom birthday song. Right, they sang it on the nerd Boat. There's a there's a running joke on the nerd Boat, which is a vacation that I take annually, that that it's always Mike Ferman's birthday. Mike Ferman is a comedian and musician if you don't know who that is. And and so there were there was more than one singing of Happy Birthday on the boat to Mike Ferman in various different versions. Now there was it was the normal one, just with somebody holding the final you for as long as possible. So I kind of wonder, now is the cruise line are they paying some kind of royalty or are they hoping for gray area? They're in international waters, so who knows well. And one of the things that Browne mentions to, and it's come up if you google the legality of Happy Birthday and its copyright, it will come up in a lot of legal blogs because it has been discussed a lot in recent years. And several people point out that at this point it's possible that, um, there has been a little bit of a back off on trying to you know, follow through and make sure people pay license and going after people that don't get license to performance, because it could draw attention to the fact that there might be some uh, sort of improperly filled out forms, some blank holes in the legal line of ownership of this song. And so at this point it's kind of like, no, that's fine, it's where a okay with that? Yeah, and it would I mean brown I mentioned specifically in his paper that even if someone wanted to go after this, you could because it is there are problems, but it would be extremely costly, particularly because at this point there have been so many licensees and so much money paid to Time Warner and the previous owners before that, that it would get legally very messy and cause just a lot of time and money to be spent. And most people don't think it's worth it, right, But you would need to just know from the outset that you needed to have more money than Time Warner, which is a quite a lot of money. That's a pretty high bar to set to start a legal proceeding, right, Maybe not more money than Time Warner, but more money than Time Warner would be really willing to spend on it. Yeah, So yes, that would probably be a lot. Yeah. So it's in such a simple song with such a sort of fascinating history. I think it's fascinating to read sort of the depositions about there's much more than what we read. Just these people, you know, being asked about this simple, simple kindergarten songs, heany so much for joining us on this Saturday. Since this episode is out of the archive, if you heard an email address or Facebook U r L or something similar over the course of the show, that could be obsolete now. Our current email address is History Podcast at i heart radio dot com. Our old how Stuff Works email address no longer works, and you can find us all over social media at missed in History. And you can subscribe to our show on Apple podcasts, Google podcasts, the I heart Radio app, and wherever else you listen to podcasts. Stuff you Missed in History Class is a production of I heart Radio. For more podcasts from I heart Radio, visit the I heart Radio app, Apple Podcasts, or wherever you listen to your favorite shows.