Once upon a time—in 1893, to be exact—Mildred and Patty Hill wrote a song they called “Good Morning to All.” The two sisters, both of whom were schoolteachers, meant their song to be a classroom greeting for kindergartners.

Over the decades, the song became much better known as “Happy Birthday to You.” Now, an Oakland law firm is arguing that it should be freely sung by all, with no copyright fees due when your Uncle Hal sings it to you on a YouTube video or at the local park.

This year at Fairyland, we’ll host about 6,000 kids and adults over our prime birthday party season. This being Oakland, it’s a very diverse crowd in terms of age, ethnicity and socioeconomic background. No matter who they are, our guests joyfully join together as families and a community to sing the song that is as American as apple pie. Fairyland pays a blanket fee to BMI and ASCAP, the two biggies in the music licensing world, which covers public usage of all songs at the park.

But for Rupa Marya, it’s a different story.

Bay Area musician Rupa Marya is working with an Oakland law firm to challenge the copyright of the song “Happy Birthday To You.”

Bay Area musician Rupa Marya is working with an Oakland law firm to challenge the copyright of the song “Happy Birthday To You.”

Rupa and her group, The April Fishes, are based in San Francisco and perform songs in a mixture of international musical styles and languages. When the band recorded “Happy Birthday to You” at a live show for use as part of a live album, they heard from a company called Warner/Chappell (the publishing arm of Warner Music Group), who claimed that it alone owns exclusive rights to the song and was therefore owed $455 for the usage.

Marya has decided to challenge that fee, and make “Happy Birthday” free to the world. In an upcoming class-action suit testing the validity of Warner/Chappell’s copyright, the law firm Donahue Gallagher Woods, which has been in Oakland for 95 years, is representing her. In addition to representing technology clients such as Autodesk, Intuit, Sybase and Symantec in copyright cases, the firm also has a roster of music clients, including Carlos Santana, Journey and Phish.

Donahue attorney Andrew MacKay was as surprised as anyone to learn of the “pay to play” aspect of the song, and reacted with “a sense of outrage.” He and two of his Donahue colleagues are teaming up with two other law firms to consolidate their cases and begin the legal process in the next week or so. It promises to be a long battle against Warner/ Chappell, which currently collects more than $2 million a year in “Happy Birthday” fees. “That’s an awful lot of money to collect for a work they didn’t create,” MacKay points out.

Here’s the gist of the three main arguments that McKay says Donahue will make on behalf of his client.

First, there is no evidence that the Hill sisters actually combined the words “happy birthday” with the melody of the song.  Second, the copyright for the song expired decades ago.

The third argument says that Warner’s renewal of the copyright in the 1960s was limited to a particular arrangement of the song, and not for the song itself, which means the song is properly in the public domain.

Warner/Chappell has not indicated any interest in settling, and the case could take years to play out. But, says MacKay, “We’re prepared to fight it to the end.” If the plaintiffs prevail, they’ll be asking refunds be given to everyone who has paid licensing fees during at least the four years prior to the complaint. If the case is lost, the current system will stay in place until 2030 or longer.

In a 1999 press release, the American Society of Composers, Authors and Publishers (ASCAP) announced that “Happy Birthday to You” was “far and away” the most popular song of the 20th century. The Guinness Book of World Records has deemed “Happy Birthday to You” to be the most frequently sung song in English.

The song’s copyright issue gained greater attention when the wide release of the acclaimed civil rights documentary “Eyes on the Prize” was halted for a number of years, in large part because of charges that needed to be paid for footage of a group singing “Happy Birthday to You” to Martin Luther King, Jr.

“We all care about this case deeply,” says MacKay. “It just seems wrong that a company would look to profit off a song like this. This is the type of case where you can really make a difference in the lives of a lot of people.”

“We believe we’re on the right side,” he adds. “Let’s free ‘Happy Birthday’!”

 

C.J. Hirschfield is the executive director of Children’s Fairyland.

Editor’s Note: This piece reflects an individual opinion and is not a reported story from Oakland Local. Oakland Local invites community residents to share their views about events and issues in Oakland. See our guidelines.

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