BROOKE GLADSTONE:  “Happy Birthday,” possibly the most well-known song in the English language, is privately owned. If you want to use “Happy Birthday” in your film or your TV show, or even sing it in your restaurant, you’ll pay. That’s why Chili’s serenades its patrons this way:

  [CHILI’S CREW]:

Happy, Happy Birthday
From the Chili's crew
We wish it was our birthday
So we can party too, hey!

BROOKE GLADSTONE:  On the Media Producer PJ Vogt offers this deep dive into the long and instructive history of “Happy Birthday.” Of course, he notes, it’s not just restaurants that go to great lengths to steer clear of this long-protected ditty.

PJ VOGT:  TV shows and movies do this too. To avoid the fee, they’ll ask us to believe that their characters live in an alternate reality, where birthdays are noted like this:

    [CLIP]:

MAN:  Happy birthday, happy birthday, happy birthday, happy birthday.

  [END CLIP]

PJ VOGT:  Or this:

    [CLIP]:

MAN:  Happy, happy, happy, happy, happy, happy, happy, I’m so happy today.

  [END CLIP

PJ VOGT:  Or this, from Mister Rogers, which is actually very sweet.

   [CLIP/MISTER ROGERS SINGING]:

We thought we'd try to tell you how we love you on your birthday
We thought we'd try to sing and dance and play today
We wanted to surprise you …

  [SOUND UP & UNDER]

PJ VOGT:   How much you actually pay to use “Happy Birthday”  depends on how much money you’ve got. Talk show host Wendy Williams complained about having to pay $700 to broadcast it on her air.

    [CLIP]:

WENDY WILLIAMS:  We had extra money in the budget this week, so we paid $700 –

FEMALE GUEST:  Yeah?

WENDY WILLIAMS:  - to sing “Happy Birthday,” ‘cause, you know, you’ve got to pay for the song.

FEMALE GUEST:  Are you serious?

WENDY WILLIAMS:  So, come on, audience –

  [WOMAN LAUGHS]

- let's not waste this money. Let’s - Happy 60^th Birthday to Natalie, and, three, two, one, hit it!

AUDIENCE/SINGING:  Happy Birthday to you…

  [SINGING/UP & UNDER]

PJ VOGT:  But Wendy Williams actually got it pretty cheap. The fees can reportedly go as high as $10,000, for six notes and five words. There’s an episode of the old Aaron Sorkin show, “Sports Night,” that’s just devoted to the insanity of this. A TV anchor gets in trouble after singing “Happy Birthday” on air.  

  [CLIP]:

MALORY:  I think it's sweet that you and your partner sing to each other on television. Others may think it's vaguely gay, but I disagree. Nonetheless, you can't do it anymore.

DAN:  Why not?

MALORY:  It's against the law.

DAN:  It's against the law to be vaguely

gay?

  [AUDIENCE LAUGHTER]

MALORY:  It's against the law to sing "Happy Birthday" on television.

DAN:  It's against the law to sing "Happy Birthday" on television. "Happy Birthday" is protected material?

MALORY:  Yes.

DAN:  Who holds the copyright to "Happy Birthday"?

MALORY:  The representatives of Mildred and Patty Hill.

DAN:  Mildred and Patty Hill.

MALLORY:  The authors.

DAN:  The authors.

MALLORY:  They wrote it.

DAN:  They wrote the song.

MALORY:  Did you think that song just happened?

DAN:  Well, yeah.

  [END CLIP]

PROFESSOR BOB BRAUNEIS:  They were sisters, of course.

PJ VOGT:  That’s Georgetown Law Professor Bob Brauneis.* He says that the Hill sisters were way ahead [LAUGHS] of their time. They were born in the 1860s in Louisville, Kentucky, where their father told them that it was better to live in a hollow tree then depend on a man for a home. Neither ever married.

PROFESSOR BOB BRAUNEIS:  They were way too hot to handle for men of those times. Mildred, the composer, went and sat in the back of black churches and transcribed spirituals because she said they were going to be the backbone of American music of the future. And, if you can imagine [LAUGHS] in the South in the 1890s, taking that attitude, that's just amazing.

PJ VOGT:  We know Mildred believed this because she wrote it down. She wrote an article called, “Negro Music,” under the pseudonym Johann Tonsor, a person she seems to have completely made up.

 [MUSIC UP AND UNDER]

The composer Dvořák read her article, which we know because it’s in his papers, with scribbles from his kid on it. A few days after reading it, Dvořák started the musical sketches for what became his masterpiece, New World Symphony, considered revolutionary for the inspiration it drew from African-American spirituals.

When she wasn’t writing as the fictional Johann Tonsor, Mildred wrote her own songs. One of them, written with her sister Patty, was called, “Good Morning to All.” At the time, the sisters were writing deceptively simple songs in a very methodical way.

PROFESSOR BOB BRAUNEIS:  They wanted to write a whole book of songs for kindergarten, songs that would be simple and yet would have – you know, would be catchy, would be dramatic.

PJ VOGT:  Since the sisters were teachers, they used their students as their focus group.

PROFESSOR BOB BRAUNEIS:  They would come home in the evening, they’d write some songs and then they’d go back into kindergarten the next morning and see how well the kids could sing them, could remember them. And when it turned out that there was some note that wasn't singing very well or wasn't sticking in the kids’ memory, they’d go back and change it in the evenings.

PJ VOGT:  From that, they got this:

[CLIP/”GOOD MORNING TO ALL” TO “HAPPY BIRTHDAY TO YOU” MELODY]: 

Good morning to you

Good morning to you

Good morning, dear children, good morning to you…

  [SONG UP & UNDER]

PROFESSOR BOB BRAUNEIS:  It was designed as a greeting that children would sing to their teacher when they arrived in the morning. It was actually surprisingly well known by the 1920s as a kindergarten song.

PJ VOGT:  At some point - and this is one of those tiny historical footnotes that later becomes very, very important -  somebody added the famous “Happy Birthday” lyrics to the “Good Morning to All” melody, and that song took off. But why?

PROFESSOR BOB BRAUNEIS:  You know, implicit in part of your question is why wasn’t there a birthday song already before that? It only emerged in the mid- to late-1800s that you started having some dramatic moment at a celebration of somebody's birthday, where it would be appropriate to burst into song. Once those parties started happening, people were looking around, I think, for a tune that everybody knew. And what was the tune that everybody knew?

 [SIX NOTES FROM “HAPPY BIRTHDAY TO YOU”]

PJ VOGT:  Here it is in the 1930s, in the film “Stella Dallas.”

  [“STELLA DALLAS” SOUNDTRACK]

It’s just a few notes to start a scene, to let the audience know, hey, we’re at a birthday.

It was already cultural shorthand, a song that belonged to all of us, except that it didn’t. From the beginning, the Hill sisters wanted to own their work.

PROFESSOR BOB BRAUNEIS:  They were careful to tell the kindergarten teachers in Louisville, you can sing it in your classrooms all you want but please don't write it down and  distribute it. I think that they were working with a publisher, and that shows an amazing awareness of what it might take to forfeit a copyright.

PJ VOGT:  In 1934, a third younger Hill sister, Jessica, sued Irving Berlin. He’d used “Happy Birthday” in his Broadway musical, “As Thousands Cheer.”

  [MUSIC UP AND UNDER]

That lawsuit prompted Jessica to finally register copyright for the song in 1935, and from that point on, the Hills were entitled to payment whenever the song was used.

PJ VOGT:  Were they wealthy from this in their lifetime, the sisters?

PROFESSOR BOB BRAUNEIS:  Not really, no. The song, you know, generated in the thousands, which I guess back in the 1930s and ‘40s is more money than it is today. The millions did not come until the, the ‘80s and the ‘90s, and, and they were long dead by then.

PJ VOGT:  They weren’t on like cruises eating shrimp cocktail?

PROFESSOR BOB BRAUNEIS:  [LAUGHS] Right, and and smiling every time the cruise had a birthday. Yeah, they were not doing that.

PJ VOGT:  Eventually, the company that had published the song for the Hill sisters was bought by another company, which was bought by another company, and so on, until ultimately it ended up the property of Warner-Chappell, the publishing arm of Warner Music Group. Warner-Chappell earns about $2 million annually from “Happy Birthday to You.” But Brauneis is actually pretty sure that Warner-Chappell's wrong to think that it owns the song, first, because the copyright to the melody actually expired in 1949.

PROFESSOR BOB BRAUNEIS:  The tune was originally published in the 1890s. Copyright in that is long gone. So you can play the tune all you want. The problem with just playing the tune is that if you want a birthday scene in your movie or television show which looks realistic and sounds realistic, people aren’t actually just humming in that scene. They’re singing the words.

PJ VOGT:  But Brauneis doesn't think that the Hill sisters actually wrote the words.

PROFESSOR BOB BRAUNEIS:  There’s amazingly little evidence that it was them. You know, I don't think we'll ever know. But it's still the current owners of copyright who have the burden of showing who wrote those lyrics. And, at this point, over 100 years after that composition happens, they’re not gonna meet that burden of proof.

PJ VOGT:  The truth is it kind of doesn’t matter. Copyright law isn't an ironclad dictate, like the border of a country. It’s a lot more like land claims in the Wild West. You own what you can defend. Warner Music Group is a behemoth. No one’s ever seriously challenged it over “Happy Birthday” and no one’s likely to. The money it collects comes from a lot of disparate places, a Sony movie here, a TV show there. Those places are not [LAUGHS] likely to sue Warner.

And so, we’re stuck. At the very earliest, “Happy Birthday” will enter the public domain in 2030. That's 137 years after Mildred Hill composed its six-note melody.

PROFESSOR BOB BRAUNEIS:  These sisters were working back at a time when there was no recording industry, there were no talkies, there were no motion pictures with synchronized sound. And the song started out way back then and it has had a copyright history that covers the entire development of the recording industry and the rise and fall of vinyl records and CDs and cassette tapes, and now we’re into digital streaming. And the song still has a copyright profile, and that’s an amazing thing.

  [MUSIC UP AND UNDER]

PJ VOGT:  Think about that. All the Hill sisters cared about were sheet music pirates. And it’s not just our culture industry that’s changed dramatically. Our idea of what copyright means has too. The Hill sisters expected that their sheet music would be protected for 28 years, plus an extra 28, if they wanted to renew it.

PROFESSOR BOB BRAUNEIS:  Copyright was something that you did, right? It was a verb. And that verb goes back to an era when you actually had to take some affirmative steps. In their era, in the 1890s, you had to register a song, you had to file the title of the song with the government before you published it. And you had to place the year that the song was published on the published copies, so that people could calculate whether the song was still protected or not.

PJ VOGT:  Today, anything you do is automatically copyrighted, and it stays in place until 70 years after you die, whether you intend it to or not. And because “Happy Birthday’s” copyright claim has extended through this evolution of an ever-broader definition of what it means to own an idea, we’ve landed here, with a song that most of us feel like belongs to all of us, but doesn’t.

But if Brauneis is right, that the copyright isn’t actually valid, there might be a way to change that. If I record myself [LAUGHS] singing “Happy Birthday” which no one would ever pay  for anyway, put it in the iTunes Store, then I could have a lawsuit and that lawsuit could prove that they do not have the rights to “Happy Birthday.”

PROFESSOR BOB BRAUNEIS:  You could bring a lawsuit or they could sue you, but remember that they always have the option of saying to the court, we will not pursue this, you know, badly-sung version on iTunes –

  [PJ LAUGHS]

- which, which only four copies have been sold so far. And the court’s going to say, why are you wasting my time? They’ve just told me that they’re not actually threatening you.

PJ VOGT:  Unfortunately, we won't know whether or not Warner- Chappell would sue me because [LAUGHS] WNYC’s lawyers have emphatically nixed that plan. But I feel deep in my heart that the ghosts of Mildred and Patty would be fine with it. For on the Media, I’m PJ Vogt.

  [MUSIC UP AND UNDER]

  SINGING:

Happy birthday to you

Happy birthday to you

Happy birthday, dear Mildred.

Happy birthday to you!

  [UKELELE PLAYS/MUSIC OUT] [MUSIC/UP AND UNDER]

 

* In the broadcast of this segment, PJ misidentified Robert Brauneis as a professor at Georgetown. He is actually a professor at George Washington University.