Copyright and Keeping a Tune

Do you know how to sing, “Happy Birthday to You”? Are you sure? I’m a bit uncertain myself, and I’ve had a few years of choral training.

This morning, I tweeted this:

This has led to some interesting discussion on Facebook that’s worth repeating for a broader crowd, because the reasons behind this particular bit of bad singing are interesting.

It was my mother who cued me into the fact that most people can’t sing this song. I mean, I don’t expect that most people can sing any particular song, simply because most people aren’t trained to sing. Still, this made me listen more, and it made me pay attention to who can and who can’t sing “Happy Birthday to You”.

As it turns out, even people who can sing don’t agree on the melody of this tune, much less the key, which is what makes being in the middle of a group singing it so painful. It isn’t just a bunch of people being roughly led by the strong singers in the group and wobbling a bit. There are usually one or two strong singers with entirely different notions of how the song goes and a whole bunch of people who would just like someone to lead them in the right direction, pretty, pretty please.

Yesterday’s ruling may change that. Why? Because the copyright claims on this song have a fair amount to do with why we don’t know how it goes.

The irony is that the song was originally composed as a piece that would be simple enough for kindergartners to be able to sing. Literally. The composer, Mildred Hill, was working with her sister Patty to compose music for the children of Patty’s kindergarten, back when kindergartens were a new enough thing that children that age were only just being recognized as having specific educational needs. There wasn’t much good music for them, so the Hill’s created it.

Only the song they created was “Good Morning to All”, not “Happy Birthday to You”. Those lyrics were created for the same tune later. When they were written, by whom, when they were officially published, by whom, and who held the copyright to that music when have been the factual points around which this legal fight has revolved.

While that fight was going on, however, the companies that claimed ownership of the copyright have been aggressive in the amount they charged for commercial use of the song. These steep fees mean that we collectively have rarely heard professionals sing, “Happy Birthday to You”.

Private renditions of the song, however, are recognized as legitimate uses under copyright law (and informal public uses are a political minefield from an enforcement standpoint). They are noncommercial and unlikely to affect the copyright holder’s ability to commercialize or control the work, so they will generally fall under fair use.

This combination has led to a situation Robert Brauneis–a legal scholar whose work on the copyright status of this song was critical to the case–has described this way:

Most people are now consumers of recorded music, delivered through ever more ubiquitous channels, from terrestrial radio (which only recently began to need that adjective), vinyl records, movies and TV, to transistor radios and cassette tapes, to CDs, to peer-to-peer networks, mp3 players and satellite radio. “Happy Birthday to You” is probably one of the few songs that people in the last two generations learned through live performances in family or community settings, and many of the others were likely children’s songs – “Twinkle, twinkle, little star” and the like – that they no longer sing or hear as grown-ups. Thus, for many people — and you, dear reader, should consider whether you are among them — “Happy Birthday to You” is the only secular song passed down through an oral folk song tradition and still sung in adulthood.

If you have any interest in the legal aspects of this fight or the history of its creators, you should check out Brauneis’s paper (pdf). Mildred Hill is particularly interesting.

So “Happy Birthday to You” is passed on by oral tradition in a society that doesn’t much do oral tradition anymore. More importantly, however, is that it is possibly unique among these songs in still being under copyright. “Twinkle, Twinkle Little Star” has music composed in the 1700s and words that were out of copyright when “Happy Birthday to You” was written. Many of these other children’s songs have similar backgrounds.

This means we don’t learn these song entirely via informal oral transmission. We have professional recordings in our shared culture that teach us how these songs are supposed to be sung, even if some of them aren’t particularly pure.

Because “Happy Birthday to You” has been so expensive to perform publicly, we don’t have those same touchstones for that song. We don’t have people reminding us how it’s “supposed” to be done. As a result, we can’t agree when the time comes, and we’re no longer used to doing what it takes to get everyone on the same page. We just assume we all know the song, when in reality, we know several versions of it.

But now that might change, depending on whether Warner/Chappell decides to sue and is successful. We might actually start recording this song we all sing again, which means we might finally come to agree on how it’s done.

Copyright and Keeping a Tune

10 thoughts on “Copyright and Keeping a Tune

  1. 2

    I has a confuse. I can’t recall being in a group singing “Happy Birthday” and having anyone NOT sing the tune the only way I’m used to it. I am generally one of those strong singers trying to establish a key, but I’m not strong enough to drown people out. Is it possible this is because I’ve lived at the western edge of the US west coast all my life? I’m trying to sort out why my experience is different from Stephanie and tigtog’s experiences.

  2. 4

    tigtog, I wish my ear were solid enough to do that when there are competing melodies.

    Numenaster, I’m not sure. It’s an excellent question, though. I’ve also wondered whether it’s been getting worse as I get older.

    robertbaden, we all smelled and looked like monkeys too, but only on our birthdays. Did you have recordings or performances of parodies?

  3. 5

    From what I hear from copyright lawyers and other people fluent in copyright law on Twitter (speaking in private, in a non-legal-advice manner), the ruling does not necessarily mean that Happy Birthday is in the public domain. It only means that Warner/Chappell do not hold the copyright. These two issues are unfortunately distinct.

    We’re basically exchanging the known risk of getting sued by one group with the possible risk of getting sued by a currently unknown group. Legal teams of movies, TV shows, etc. will probably still advise not to use Happy Birthday.

  4. AMM

    I wasn’t aware that there was more than one version of that tune. I have sung it on and off all my life, in all kinds of places, and it’s always been the same tune. Apparently, they even sing it in Russia — in English, no less. (At least that’s what my Russian-born co-workers say.) And when they sing it at birthday celebrations at my office they sing the tune I know. People sometimes make up a harmony line if they’re singing it with a group of people, but it’s always based on the same melody.

    As for what key: most people, when singing any song without an accompaniment, start with a more or less randomly chosen note and go on from there. If you’re singing in an organized group, someone gives a starting pitch (a capella groups usually have someone with a pitch pipe or equivalent.) Whoever wrote the song might have chosen a key, but almost nobody who learns it from hearing it will remember what that was.

    BTW, I can’t recall ever hearing a recording of “Twinkle, twinkle little star” or “Itsy bitsy spider.” I’m skeptical (:-)) that people’s knowledge of those tunes comes from recordings. Most of the church hymns I know I know from singing them in church. Not exactly “oral tradition”, but not based on some canonical recording.

  5. 7

    DrMcCoy, while it is true that the judge merely ruled that Warner/Chappell did not prove they had copyright, the likelihood that anyone else would is minuscule. That would require that a rights-holder had renewed the copyright in the 50s or 60s without making any claim on the company that was receiving revenue for the song at the time, as well as this renewed copyright claim not showing up in any searches to date while still being discoverable and of provable provenance. It isn’t technically impossible, but we can be pretty comfortable saying it’s in the public domain.

  6. 9

    I’ve also only ever heard one tune. There is some variation on the penultimate lyrics, but always to the same tune. Now I’m curious as to what the variants are.

  7. 10

    Seconding carlie. Every rendition, whether at a private gathering or in media, has always had the same except tune. It is a complete surprise to hear that there are variants at all.

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