Are You a Copyright Scofflaw?

That sounds like an odd question to ask in the 21st Century, in the era of Bittorrent, when the breakthrough of Napster fades like a crumbling building in the rear view mirror, doesn’t it? But I’m not talking about anything electronic, anything dealing with the Internet, or even the complaints that the modern generation thinks everything should be free. I’m talking low tech. I’m talking old school. I’m talking something you do only around your closest family and most dear friends. I did it just this past Sunday. I’m talking . . . about singing “Happy Birthday.” Yes, that’s right, it appears that “Happy Birthday” is copyright protected:

If you want to sing the song on TV, or in a restaurant, or whatever, you have to pay a licensing fee to Warner/Chappell, the music company that owns the rights. The company makes about $2 million a year off the song, according to one estimate. 

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The story of the song is long and weirdly complex. The short version is: A pair of sisters published a song called ‘Good Morning to You’ in 1893. Over the next few decades, the song morphed into ‘Happy Birthday to You.’ In the 1920s and '30s, a couple versions of the birthday song were published in copyrighted songbooks.

That’s why, for instance, when you see some poor schmuck being embarrassed by a phalanx of unenthused waitpersons on her birthday at some restaurant they’re never actually singing “Happy Birthday.” It’s cheaper to have someone write a song just for that chain (and, hey, you get the brand out there more!). But that may soon change, thanks to director Jennifer Nelson, who made a documentary on the song’s history and place in the culture. When it came time to put an actual performance of the song in the film, she found she had to pay Warner/Chappell $1500. She’s not alone:

Ms. Nelson is not the first documentarian to confront the issue of paying to use the Happy Birthday song. The filmmaker Steve James paid $5,000 to use the song in the acclaimed 1994 documentary ‘Hoop Dreams,’ in which it is sung at a man’s 18th birthday party. ‘It was an important scene,’ Mr. James said in a 2005 article in The New York Times, ‘there was some amazement that Arthur had made it to 18. Of course, we wanted that in.’

What Nelson has done is take the whole matter to court, seeking to have the song declared part of the public domain (the suit is based on work done in a law review article a few years ago). I don’t know enough about copyright law (or the tortured history of “Happy Birthday”) to offer an opinion on her chances of winning. I hope she does, though. Who needs the threat of Warner/Chappel’s enforcers breaking down your door just as the cake and ice cream gets handed out?