An Association’s Complex “Happy Birthday” Claim

In the wake of a court ruling that removed a music publishing firm's ownership of "Happy Birthday," an education association with ties to one of the song's original writers is making a pitch in court that the song's copyright should revert back to the association.

The battle over one of the most famous songs in history has taken numerous forms over the years, but the latest really takes the cake.

“Happy Birthday,” the ever-popular sing-along, has faced questions about its copyright status for decades, leading to a court ruling in September that found that Warner/Chappell, a music publishing company, doesn’t own the copyright to the song. Many critics of the copyright claim assumed that this meant the song went into the public domain, but an educational nonprofit could throw a monkey wrench into that line of thinking.

Last week, the Association for Childhood Education International (ACEI) filed a motion to intervene in the legal battle over the classic song, claiming the association should now control the song’s copyright.

Parsing ACEI’s Birthday Stake

In case you’re wondering how an educational association can make a claim of ownership for the song, it’s important to understand the song’s history.

The tune first came along in the 1890s as a children’s song titled “Good Morning to All,” written by sisters Patty and Mildred Hill. The song’s lyrics eventually morphed into what we know as “Happy Birthday”. In 1935, Patty joined her other sister, Jessica, and “Good Morning” copyright holder Clayton F. Summy Co. in copyrighting the morphed version of the song. The trio took ownership of the song roughly 20 years after Mildred’s death, at a time when the birthday tune had already become a standard.

During her life, Patty became a major force in the education world, helping to found the National Association for Nursery Education (NANE), which later became the National Association for the Education of Young Children (NAEYC). She was also active in ACEI, with its recent legal motion claiming she had played a key role in founding the educational charity.

The family’s ties to ACEI reach to the current day, though now only on paper. In 1942, Jessica and Patty created the Hill Foundation as a holding organization for the substantial royalties the song receives yearly. Patty Hill died in 1946, and Jessica Hill later granted ownership of the Hill Foundation to ACEI in her will, but only if her nephew, Archibald Hill, failed to have any descendants of his own. Archibald died in 1992 without any next of kin, meaning that one-third of the royalties to the song were granted to ACEI through the Hill Foundation.

Complicated, right?

Now, with Warner/Chappell’s ownership of the song failing to stand up in court, ACEI argues that the full copyright—including the two-thirds previously claimed by the music-publishing label—should revert back to the association.

“When Jessica Hill died, her entire estate ultimately went to ACEI, which included ownership in the Hill Foundation, as well as those same copyrights,” the motion states [PDF]. “As the beneficiaries of Jessica Hill’s estate, both ACEI and the Hill Foundation have a very real and present interest in this litigation.”

A Valuable Birthday Gift

The reason ACEI could potentially step up to take ownership of the song has much to do with the way the court ruled against Warner/Chappell, which has held Clayton F. Summy’s publishing rights to the song for decades.

Rather than ruling the song was in the public domain, the United States District Court for the Central District of California found that the disputed ownership over the song made it an “orphan work,” which left the door open for ACEI to claim ownership.

The technology site TechDirt noted that most news outlets that wrote about the September ruling declared “Happy Birthday” in the public domain, so for some, the ruling comes as a bit of a surprise. Writer Mike Masnick, an expert on digital copyright issues, suggests that the case may remain a complicated one for ACEI to win, as the court could still rule that the song is already in the public domain.

“The matter is made much more complex by the interplay of a few different copyright regimes, including common law copyright found in various state laws at the time, but it strikes me that the heirs of the Hill Sisters have an uphill battle here,” Masnick wrote.

The association will lose a major source of income if the song does fall into the public domain: The song is said to generate upwards of $2 million per year in licensing revenue.


Ernie Smith

By Ernie Smith

Ernie Smith is a former senior editor for Associations Now. MORE

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