If you go searching for information about the history of the song “Happy Birthday to You,” you’ll quickly run into a tangled web of analyses and debates regarding its copyright status. Here’s a quick introduction to the facts as generally known. The tune, originally composed with the lyrics “Good-Morning To All” by sisters Jessica and Patty Hill, was published and copyrighted in a book called Song Stories for the Kindergarten in 1893 (now in the public domain):
This tune later came to be associated—nobody seems to know quite how—with the “Happy Birthday to You” lyrics. Litigation in the 1930s, after “Happy Birthday to You” had found its way into a Broadway production, aimed to assert ownership of the tune based on the 1893 copyright (which had been renewed in 1921). In 1935, the purported rights-holders in the tune also sought to exploit it by publishing a new arrangement which included the familiar “Happy Birthday to You” lyrics, together with a second verse. The copyright in the 1935 publication is, in turn, the basis for claims that the combination of tune and lyrics is still protected, such that if you want—for example—to include someone singing “Happy Birthday to You” in a film, you’re urged to pay a fee for the privilege of doing so, perhaps running to thousands of dollars. Restaurants have devised a host of alternative birthday songs to sing to customers as a workaround. But a growing surge of disgruntlement has arisen among folks who think this is all pretty ridiculous. And that surge has begun to grow some teeth.
It’s clear, after all, that the combination of tune and lyrics was a matter of common knowledge well before the 1935 copyright registration: not only had the words and music been routinely sung together at birthday celebrations before then, but they had also appeared together previously in print. Efforts have been underway for a while now to establish how much older the combination actually is. In “Copyright and the World’s Most Popular Song,” one of the most definitive pieces of writing on the subject, Robert Brauneis cites the first appearance in print of the words “Happy Birthday To You” with the tune “Good-Morning To All” as The Beginner’s Book of Songs (1912), but he observes in a footnote that “Happy Birthday To You” was merely printed above the music for “Good-Morning To All” as an alternative title, without the lyrics being written out under the music in their entirety. The first instance he cites of a publication of the tune together with the full lyrics is in Robert H. Coleman’s Harvest Songs (1924). Nevertheless, he notes (p. 32) that “all of these publications were likely unauthorized,” since they appeared with no composer credit, such that they wouldn’t place the combination of tune and lyrics into the public domain by virtue of publication either without notice of copyright, or with a pre-1923 copyright. If not for the lack of “authorization,” either of these acts would have made the song common property.
I’ll grant that the pre-1935 examples which Brauneis cites might well have been unauthorized publications of the tune of “Good-Morning To All.” But it’s not clear from Brauneis’s account who would have been in a position to authorize—or to forbid—publication of the text “Happy birthday to you / Happy birthday to you / Happy birthday dear X / Happy birthday to you,” as the creator of this separate and distinctive literary work, either with or without the tune. I think that’s an important question; after all, it’s the words that really seem to be at issue here, and not the music.
The answer doesn’t appear to be the Hill sisters. Consider this testimony given by Jessica (quoted by Brauneis on p. 30):
A. … while only the words “Good Morning to All” were put in the book we used it for “Good-bye to you”, “Happy Journey to You”, “Happy Christmas to You” and “Happy New Year to You”, [“]Happy Vacation to You” and so forth and so on.
Q. Did you also use the words “Happy Birthday to You”.
A. We certainly did with every birthday celebration in the school.
Q. Did you write the words for this particular tune of “Good Morning To All,” Miss Hill?
A. I did.
Q. Had you at that time also written many other verses in conjunction with the words which appear in the edition of “Song Stories for the Kindergarten”, published in 1893.
A. Yes, we were writing them practically every day.
According to Jessica Hills’s own testimony, as guided by an attorney representing her interests, she and her sister had written the tune, the published words for that tune, and “many other verses,” and had used the lyrics “Happy Birthday to You.” But as Brauneis points out, this line of questioning conspicuously omits one seemingly obvious question: “Did you write the words ‘Happy Birthday to You’?” Presumably the attorney had chosen his questions to bring out those details most favorable to associating the authorship of the work with the Hill sisters. The fact that the attorney didn’t ask Jessica whether she and/or her sister had written the words implies rather strongly that he knew the answer would have been “no,” or perhaps “I don’t remember.” Indeed, there appears to be no evidence whatsoever that the Hill sisters composed the words to “Happy Birthday to You,” or that they ever even claimed to have done so. Any copyright claim on their behalf rested wholly on their creation of the tune, as copyrighted in 1893. Hence we can’t assume that a publication of the words that they didn’t authorize was therefore unauthorized.
In this light, I’d like to bring up for consideration something I believe is a new discovery on my part—a literary work called “Roy’s Birthday” that had appeared in Edith Goodyear Alger’s A Primer of Work and Play (Boston: D. C. Heath, 1901), digitized by Google Books from a copy held by the Indiana University Libraries, which is how I found it through keyword searching on HathiTrust:
To-day is Roy’s birthday.
His father gave him a dog.
His mother gave him a picture.
It is a picture of three horses.
Will gave him the paper soldiers.
May gave him a picture book.
There are pictures of dogs in it.
Ruth gave him the music box.
Roy is a happy boy.
He likes pretty things.
A happy birthday to you,
A happy birthday to you,
A happy birthday, dear Roy,
A happy birthday to you.
I requested Indiana University’s copy from the Auxiliary Library Facility so that I could see it for myself and make some color scans for this blog post, but I also just ordered the single copy I saw advertised through Bookfinder for $15, speculating that it might soon hurtle out of my price range as a highly sought-after collector’s item (it hasn’t yet had time to ship, much less reach me). It’s a moderately rare book: WorldCat lists just eight physical copies of the 1901 Boston edition in libraries, plus an even scarcer 1902 London edition. Anyhow, here’s a peek at the IU copy:
This is the earliest source I’ve seen for the full text of “Happy Birthday to You,” differing from the words familiar today only in the inclusion of the indefinite article “a” at the beginning of each line. (The modification could, I think, reasonably be interpreted as an abridgment or adaptation—that is, if there’s enough to the piece for it to count as a creative work in the first place.) The words weren’t associated here with any tune, and there’s no indication that they were intended for singing rather than recitation. Rather, “Roy’s Birthday” as a whole, including its final four lines, was framed as a literary work for children explicitly credited to Edith Goodyear Alger, and formally copyrighted together with the rest of her book in 1901. Here’s the actual copyright notice, just so we’re all clear about this:
So who was Edith Goodyear Alger? According to a genealogy of her family, she was born on January 10, 1867, as the eighth and last child of New Haven customs inspector Ellsworth Davis Sprague Goodyear and his wife Sarah Bishop, and in 1896 she married John Lincoln Alger of Bennington, Vermont, where the 1900 census lists him as Superintendent of Public Schools; he also served as Principal (subsequently President) of Rhode Island Normal School (subsequently Rhode Island College of Education) from 1908 to 1938. Edith is consistently listed in census records as having no occupation, but she produced a variety of writings on education in addition to her Primer, including a series of “Picture Studies” (here’s a link to number one) published in Primary Education during 1899, and a number of writings on school gardens (including this one). She died on September 25, 1952.
So back to “Happy Birthday to You.” I’ve seen no earlier publication than Alger’s of the familiar words, and nobody else appears ever to have staked a plausible or explicit claim to having authored them. Thus, I want to suggest that Edith Goodyear Alger held a defensible copyright in the text of “Happy Birthday to You,” as part of a larger work entitled “Roy’s Birthday,” from 1901 until 1929 (the copyright evidently wasn’t renewed for a second term of 28 years).
Granted, the words weren’t necessarily original with Alger, even if she’s the first person known to have fixed them in a tangible medium of expression. The three-time repetition of the phrase “A happy birthday to you” might be difficult to explain from the standpoint of a reading primer unless the children reading it were expected already to be familiar with a piece of some kind in which those same repetitions occurred—although there’s also a fair bit of repetition elsewhere in Alger’s text. Later on in the book, underneath a picture of a chalkboard with the words “GOOD-MORNING TO ALL” on it, Alger writes:
The children are singing.
We sing in school too.
We sing a “Good-morning” song.
We have marching songs.
We have songs for work and play.
One song we sing on birthdays.
On the next page, Alger gives the text of the Hill sisters’ “Good-Morning to All,” without quotation marks or attribution, but also with an extra line thrown in—”Good morning, dear teacher”—that would have made it something of a strain to sing to the usual melody. It seems that Alger assumed children reading her book would know the “Good-Morning” song, and that they also knew a song to “sing on birthdays,” even though she doesn’t specify whether the tunes were the same, or whether the birthday song used the same words found at the end of “Roy’s Birthday.” So maybe she appended the pre-existing lyrics of the song “Happy Birthday to You” to “Roy’s Birthday” in 1901 because they were already sufficiently well-known by that time that she believed children in her target audience would know and appreciate them. After all, there are other references to something called “Happy Birthday to You” being sung, cited by Paul Collins, dating back to 1900, the year before Alger’s book was published—although there’s no proof that these weren’t referring to some other song by that name with different tune and lyrics.
But I don’t know that any of this speculation really matters. Barring concrete evidence to the contrary, we generally take copyright registrations like that of Alger’s book at face value. I doubt anyone would seriously argue that someone other than Alger might have composed the lines I see a pretty apple. / I see a pretty red apple. / I have a pretty apple. / I have a pretty red apple, which seem to have appeared in print for the first time in her book, even though it’s theoretically possible that somebody else had come up with them:
The lyrics to “Happy Birthday to You,” which are otherwise anonymous, similarly formed part of a text of which Alger was identified as the author. Even if those lyrics had already been familiar in 1900—a proposition for which the evidence is scant and circumstantial at best—we still have no compelling reason to assume she hadn’t personally composed them some time before she authorized their publication in 1901. Maybe A Primer of Work and Play had circulated in manuscript. The burden of proof would, I believe, fall on anyone who wanted to argue that she did not compose all of the text that was registered for copyright under her name. Granted, she inserted her modified text of the Hill sisters’ “Good-Morning to All” without attribution or (presumably) authorization. But where’s the evidence that Alger hadn’t come up with the “Happy Birthday to You” wording herself? I see none. Even if the Hill sisters had claimed to have composed these lyrics years after the fact—which they didn’t—that in itself wouldn’t give them a stronger claim to the authorship of the lyrics than Alger’s unless they had furnished some pre-1901 documentary evidence to back them up.
As likely as it may seem that the words and tune went together from the beginning, then, there’s no proof that this was the case, and in A Primer of Work and Play we have a publication of the text that might conceivably have predated the connection between the two. The other potentially original work at issue here is therefore the combination of the Hill sisters’ copyrighted tune (1893) with Alger’s copyrighted text (1901). I don’t see any conclusive evidence that either the Hill sisters or Alger was responsible for initiating this step, if it was a separate step. Rather, if we’re looking for the first definitive documentation that someone had brought the two elements together, it appears to lie in Alice Jacobs and Ermina C. Lincoln’s The Elementary Worker and His Work (1911), a source that—unlike Alger’s—has often been cited in connection with the history of “Happy Birthday to You.”
First, Jacobs and Lincoln print the lyrics to the Hill sisters’ “Good-Morning to All,” with a note at the end of the book that the tune could be obtained by buying their Song Stories for the Kindergarten. And then they provide other lyrics to be “sung to the same tune as the Good Morning”:
A welcome to you,
A welcome to you,
A welcome, dear children,
We’re glad to see you.
(And if there’s someone specific to be welcomed:)
A welcome to you,
A welcome to you,
A welcome, dear Nellie,
We’re glad to see you.
(And if it’s somebody’s birthday:)
Happy birthday to you,
Happy birthday to you,
Happy birthday, dear John,
Happy birthday to you.
Jacobs and Lincoln had thus explicitly combined “Happy Birthday to You” with the Hill sisters’ tune, but they didn’t actually print the tune, either with or without authorization. Elizabeth Williams Sudlow’s All About the Primary (1909) had presented the lyrics to “A Welcome to You” in similar fashion:
Tune: Good-Morning to You.
A welcome to you, a welcome to you,
A welcome, dear playmate,
A welcome to you.
In this last case, I believe Sudlow was in the same legal position I would be in myself if I were to compose and publish the following lyrics to the tune of “You Are My Sunshine” (presuming, dear reader, that you already know how it goes):
A happy birthday to you, my darling;
A happy birthday: you’re __ years old.
You’ll keep on aging until you’re older,
Or at least this is what I’ve been told.
I don’t think I need anyone’s permission to publish those lyrics, which I just now composed, even though the tune of “You Are My Sunshine” is itself under copyright (which could complicate public performances, sound recordings, etc.). Now let’s say that somehow these lyrics go viral, and everyone starts singing them at birthday parties, to the point that the popularity of “A Happy Birthday To You, My Darling” eclipses the popularity of “You Are My Sunshine.” And now let’s say hypothetically that I opt to release my original lyrics into the public domain. The copyright holder of the tune could, I suppose, now publish the tune together with my lyrics. But I don’t believe that would restart the copyright clock on that combination per se, or that it would give the rights-holders of the tune an interest in that combination beyond the duration of the original copyright in the tune itself.
With Jacobs and Lincoln, it’s a little more complicated: the lyrics they’ve put forward to be sung to the tune of “Good-Morning to All” had themselves already been published (and copyrighted)—”A Welcome to You” by Sudlow, and “Happy Birthday to You” (as I’m suggesting) by Alger. With “A Welcome to You,” the words had already been set to the music. But with “Happy Birthday to You,” we have no proof that the words had ever been set to that tune before. Jacobs and Lincoln were the first people, so far as we know, who ever stipulated explicitly and unambiguously: sing these words to this tune.
So the 1935 publication that forms the basis for current copyright claims really combined the following elements, with attributions given here to the people first known to have fixed them in tangible media of communication:
(1) The tune “Good-Morning to All,” by Jessica and Patty Hill (copyright 1893).
(2) An excerpt from “Roy’s Birthday,” by Edith Goodyear Alger (copyright 1901; published without reference to the tune).
(3) The combination of tune and text, by Alice Jacobs and Ermina C. Lincoln (copyright 1911, if copyrightable; published without any unauthorized printing of the tune).
(4) The musical arrangement plus an additional verse (both apparently new in 1935).
Last year, news media announced a class-action lawsuit challenging the copyright claim by Warner/Chappell Music and demanding the return of royalties paid in years past for “Happy Birthday to You”; the complaint may be read here. According to Variety, “Attorneys for Warner/Chappell…say that they will submit as evidence certificates of a 1935 copyright registration for ‘Happy Birthday to You’ that covers the lyrics and piano arrangements. One of the publisher’s attorneys, Kelly Klaus of Munger, Tolles & Olson, said at the hearing that they ‘think this case will end very quickly on the merits.'” But NPR speculated that the 1911 publication by Jacobs and Lincoln “could end the copyright war,” noting that it appeared “long before copyrighted versions of the song appeared.” I’d respectfully point out that Jacobs and Lincoln’s whole publication was copyrighted, although its copyright has long since expired, and that this copyright was presumably understood as covering whatever of the book’s contents hadn’t previously been copyrighted by someone else. And I’d like to see Edith Goodyear Alger’s publication of “Roy’s Birthday” added to the mix as evidence that the lyrics of “Happy Birthday to You” were duly copyrighted 113 years ago—by someone who has as good a claim as any to having been their author—and so have entered the public domain fair and square. I wish the plaintiffs taking on Warner/Chappell Music the best of luck.
So all together now, let’s sing: