Restaurant employees can finally sing Happy Birthday to its customers.

Alyssa Hertel | 3/1/16

You might have noticed that when you go out to eat for your birthday, the restaurant employees don’t sing you the traditional Happy Birthday song, but rather they sing a song of their own creation.  The songs style usually reflects the restaurants ambiance and the song typically includes the name of the restaurant within the lyrics of the song.

You might be wondering why restaurants go out of their way and take the time to write a birthday song for its customers when Happy Birthday exists. Well, until recently Happy Birthday was not available for restaurants to sing the song publicly. As a matter of fact, it was not available for any individual or group of individuals to publicly perform the song without authorization because the song was still copyrighted and was not yet in the public domain.

It is puzzling to think that a song that we are so accustomed to singing at every birthday party we attended, is not available to for us to sing in the public. This is because the Happy Birthday song was still under the protection of its copyright and not available to the public domain until last year.

The song actually brings in roughly $2,000,000 per year to its copyright owners, Warner/Chappell Music. Warner came to be the owner of the copyright of the Happy Birthday song in 1988 when it purchased the Summy Company for 25 million dollars with the estimated value of the song to be only 5 million dollars.

The Summy Company had owned the copyright for the Happy Birthday song when it registered the song in 1935, crediting Preston Ware Orem and Mrs. R.R. Forman as the authors. Because the song was registered in 1935, Warner has maintained that the copyright for the Happy Birthday song would not expire until 2030 and therefore Warner had the right to collect royalties of any public performance of the song that was authorized.  Any unauthorized public performance was in violation of Warner’s §106(5) of the Copyright Act, the exclusive right to do and to authorize a performance of the copyrighted work publicly, better know as a public performance right.

This meant that Warner could sue any individual or company that sang the Happy Birthday song in public with the only exception to small gathering of family/friends in a private setting. This public setting included restaurants, tv shows and movies.

That is why restaurants had to create their own Happy Birthday song to sing to its customers. It is why you never hear the characters in a TV show or movie sing happy birthday to one of the characters during a birthday celebration.  And it is why you never hear the Happy Birthday song on the radio or any public performance of it.

In order for a restaurant or a TV show/movie to be able to sing the Happy Birthday song, Warner would need to provide authorization to sing it public. Therefore, they would have to pay royalties for each and every time they sang it. That is why restaurants decided it was financially better for them to create their own happy birthday song instead of paying royalties every time the employees of the restaurant would sing happy birthday to a customer.

It is also why the producers of movies and TV shows chose to not play the happy birthday song when showing a birthday celebration of a character because they’d rather spend the budget on things more important than singing happy birthday.

However, restaurants and the rest of the population are now free to publicly sing the Happy Birthday song in without having to pay for the rights to a public performance of the song nor do they have to worry if Warner will sue them for copyright infringement. All thanks to Jennifer Nelson, a director, who made a documentary about the history of the song Happy Birthday and wanted the $1,500 licensing fee Warner asked for the use of the song in the documentary back.

Instead of paying the fee and moving on, Nelson brought a class action lawsuit to end Warner’s reign of forcing film and TV show producers, along with restaurant owners and the rest of the public to pay a licensing fee every time they publicly performed the song Happy Birthday. Nelson brought the lawsuit in order to recover the licensing fee she felt she wrongfully was required to pay, and hopes to have others recover the licensing fees they also wrongfully paid to Warner for the use of the Happy Birthday song.

In the lawsuit, the court ruled that the Summy Corporation should have never been granted the copyright to the song Happy Birthday. The court found that Summy Corporation, the original owner of the Happy Birthday copyright, was never granted the rights to the lyrics of Happy Birthday, but was only granted various licenses for various piano arrangements for the song Happy Birthday.

Because Summy Corporation never owned the rights to the lyrics of Happy Birthday, Warner never acquired the rights and therefore does not own a valid copyright to the song Happy Birthday. Further the court noted that the authors of the lyrics for the song Happy Birthday never attempted to protect the lyrics under copyright protection.

With this ruling the Court was able to finally stop Warner from requiring film and TV producers, restaurant owners, and others to pay a licensing fee every time they used the song and therefore put the song Happy Birthday back in the public domain.

A settlement deal was also reached which provided that Warner, who still argues the song Happy Birthday does not belong in the public domain, would pay back the licensing fees they have charged over the years for up to 14 million dollars. It looks like the song Happy Birthday is back in the public domain, and will stay there. So the next time you go to a restaurant for your birthday, be sure to have them sing you the actual Happy Birthday song.