Now that a judge has thrown out the copyright claim on the song every single human sings to someone on their birthday, leaving “Happy Birthday to You” in the public domain, filmmakers and fans alike should be celebrating at the prospect of never again needing to write a new song (or paying hefty fees) for birthday scenes.
Granted, we should also be mourning the loss of bizarre new, cost-saving birthday songs.
There was always something special about them. We knew why they cropped up, but their existence always placed movies into a strange alternative universe where everything was exactly the same as our world except people sang something different just before watching someone blow out the candles. You could really get lost in a narrative, and then someone would start singing an alien song at a kid wearing a pointy hat. Like if people in movies brushed their teeth with horse radish or something.
The legal restriction also meant that hearing the song itself in a movie (and pretty much never in a TV show) was a rare treat. Now it can be used far and wide by all, and to commemorate the occasion, let’s look at an extremely brief history of movies using (or avoiding) the most popular song on the planet.
Before the Copyright Claim
Maybe the most surprising element of this whole copyright mess is that a song whose origins go back at least to 1893 didn’t have a copyright claim made on it until 1935. Thus, before then (as now), it was used freely in movies like this 1932 Warner Brothers cartoon, Bosko’s Party. The song starts at the 3:45 mark.
This would have been two decades after the song as we know it was published officially in song books and probably half a century after its initial creation and proliferation. The originators Patty Smith Hill and Mildred Hill then entrusted the copyright to the Summy Company, who registered a copyright claim on it in 1935. That move eventually leads us into the modern mess.
After the Copyright Claim
Between then and now, you had to pay if you wanted to play it. Warner Music Group bought the copyright in 1988 and started charging for it, raking in money to the tune of $2m (estimated) per year. This was built from different fees for different projects which varied, but were almost always in the thousands of dollars.
Those who didn’t want to pay tended to stick with “For He’s a Jolly Good Fellow,” which is firmly in the public domain, even if some monsters end it with “and so say all of us,” instead of “which nobody can deny,” like normal, decent people.
The royalty fees became an inside joke, and TV shows who weren’t going to pay thousands of dollars for one song in one episode started lampshading it or directly referencing the problematic price tag. Enter Futurama with its pitch-perfect parody of the expensive tune, using most of the notes from “Good Morning to You” (which, yes, has the same notes as “Happy Birthday” because “Happy Birthday” is based on “Good Morning to All,” and are you confused yet?):
30 Rock and Community both did riffs on avoiding the entire song, and I’d like to believe that Mad Men’s beautiful “Zou Bisou Bisou” scene came out of creatively sidestepping the generic (and the cost that came with it).
The purest form of bizarro world birthday songs came in movies where characters in restaurants sang (aka art imitating life at T.G.I. Friday’s), so you ended up with the cast of Waiting… terrifying a small child with an Army march version and the Slackers chant, “When I say ‘Birthday!, you say ‘Party!’” (sung at “Lenny’s” no less).
Meanwhile, if you’re Alfred Hitchcock, you simply replace the song with a flock of birds trying to peck-murder a group of happy children. Copyright fee, expertly avoided.
However we all know that the absolute best use of the song itself in any movie came in Full Metal Jacket when R. Lee Ermey sonorously let it rip for Jesus’ special day. Exactly zero people will refute this.
The Death of the Copyright Claim
Who knows what the future holds for filmmakers eyeing a section of a screenplay where people gather with presents and cake. Maybe most are breathing heavy sights of relief. Maybe some still plan on tackling the challenge of crafting their own, weird song for old time’s sake.
Whatever the case, it’s important to recognize that the song’s lyrics aren’t exactly in the public domain. They’re an orphan work, which means that the genuine rightsholders can’t be determined, are deceased or cannot be contacted. This complicates things a bit, but with the song’s age and notoriety, it’s hard to imagine anyone else coming forward with a legitimate claim to it.
What might be more important is realizing how a silly song that two 19th century women invented to sing to schoolchildren ended up making millions for a company who bought a piece of paper. Our copyright laws are truly, profoundly messed up.
Let’s sing something to celebrate. Got any ideas?
Related Topics: Brief History
