September 1, 2008

City May Owe Royalty If It Sings ‘Happy Birthday’

By Jason Cato

Pittsburgh turns 250 this fall, but if organizers plan to sing happy birthday during October's soiree they'd better be prepared to fork over some cash.

"Happy Birthday to You," the four-line ditty heard by all at least once a year, is under copyright -- until 2030.

"I know this is hard to believe," said Phil Crosland, a spokesman for the American Society of Composers, Authors and Publishers, or ASCAP. "But 'Happy Birthday' is a copyrighted composition."

The tune was written in 1893 as "Good Morning to All" by Kentucky schoolteachers and sisters Mildred and Patty Hill. Another Hill sister and a Chicago-based music publisher copyrighted "Happy Birthday to You" in 1935.

Under federal copyright laws at the time, the song would have entered the public domain by 1991, at the latest. But the Copyright Act of 1978 extended protection to 75 years, and the Copyright Term Extension Act of 1998 tacked on another 20.

Robert Brauneis, co-director of the intellectual property law program at George Washington University, wrote a 69-page paper on the subject this year, and doubts that "Happy Birthday to You" could withstand a legal challenge to its copyright protection -- which allows the song to generate about $2 million a year in royalties for Warner/Chappell Music, which owns rights to the song, and the Association for Childhood Education International.

"It probably isn't under copyright anymore, but no one has ever fought it," Brauneis said. "If one person was paying that amount, it might be worth fighting."

Movie producers might pay as much as $15,000 to feature the song in a scene, Brauneis estimated. Television shows likely pay a bit less, and public performances in arenas, restaurants -- and yes, even cities -- considerably less, he said. Singing it at home or at a private gathering, of course, costs nothing.

But belting it out during Pittsburgh's organized celebration?

"Undoubtedly, it would be a public performance," Brauneis said. "Would ASCAP sue? That would definitely generate a lot of bad press. It went after the Girl Scouts and that backfired on them, so they might think twice."

ASCAP was criticized in the mid-1990s when it sent letters to thousands of Girl Scout camps saying they would have to pay royalties for "public performances" of copyrighted songs. Some Scouts stopped singing campfire songs because of the fear of being sued. ASCAP later said it regretted the misunderstanding the letters caused and never intended to sue the Girl Scouts or halt sing- alongs.

Crosland said city officials in Pittsburgh have talked with ASCAP about negotiating an ASCAP contract, which would allow any of the society's 8 million songs to be played during parades, festivals and other public gatherings -- including the birthday bash. The deal likely would cost less than $4,000 annually, Crosland said.

But if no deal is in place by October, and "If 'Happy Birthday' is the only song to be sung, we wouldn't make a big deal about that," Crosland said.

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