April 10, 2013 • 27 mins
When teachers Mildred and Patty Hill's song "Good Morning to All" was published in 1893, there was no public performance right for songs. After the tune was paired with the birthday lyrics, its popularity soared and sparked a tremendous copyright battle.
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Episode Transcript
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Speaker 1 (00:01):
Welcome to Stuff You missed in History class from how
Stuff Works dot com. Hello, and welcome to the podcast.
I'm Holly Friend and I am Tracy V. Wilson, and
(00:21):
today we're going to talk about a thing that everybody knows. Yes, uh,
everybody knows the song Happy Birthday to You pretty much everybody.
Even if you don't sing it for whatever reason, you
probably know how it goes. I don't enjoy it at
my birthday. I would rather people saying you're older than
you've ever been and now you're getting older. Oh yeah,
that one's fun. Thanks. They might be giants. Mine is
(00:43):
mostly a problem of people start Happy Birthday too high,
and then when they get to that third line they
really have to stretch, and everybody sounds a little dicey.
Mine is that I don't like to sing in front
of other people. Well, I don't mean, and I'm very
self conscious about my voice and whether I am off key. Well,
that's a whole other bollow ax for me. I'm singing
does not happen in front of other people, but so
(01:05):
Happy Birthday to You is one of the three most
popular songs in the English language, and it's been translated
and published in so many other languages. But sometimes people
are still surprised that this song is actually protected under
copyright and cannot be selling in a public performance without
paying royalties. It's one of those things that we hear
so often that surely it must be in the public domain. No,
(01:27):
it is not. It is not. Uh, it came from
a place, it was written by people, and uh, you know,
so we wanted to kind of examine the history of
it and where this simple little tune came from and
why waiters can't sing it in restaurants right. Well, and
that's it's a thing that people can easily interpret as
ridiculous that you can't sing happy Birthday Like that's one
(01:48):
of those this is a dumb legal requirement thing that
people will say. So, yeah, how did we get to
this point? Well, and for clarity and um, talk about
it a little bit more towards the end when we
talk about the current legal state of examination around it,
uh and copyright law. You can't sing it at a
birthday party that's considered a private affair. You just can't
(02:09):
sing it for a public performance anytime you would directly
or indirectly be profiting from it, etcetera. You can't put
it in your movie correct without licensing it. So uh.
The sisters behind the song, Mildred j Hill and Patti
Smith Hill, were actually the daughters of Presbyterian minister Dr.
William Hill, and he actually founded the Bellwood Female Seminary.
(02:31):
And their mother was Martha Hill, who studied college courses
through private tutoring at Center College, but she was never
granted a formal degree because of her gender. And they
actually had an interesting family. They had six children, So
there was Mildred Jane who was the eldest. She was
born in June of eighteen fifty nine, Mary Downing Hill
who was born in eighteen sixty four, William Wallace Hill
(02:55):
born in eighteen sixty six. Patty, the other sister Germaine
to this songwriting story, was born in March of eighteen
sixty eight. Archibald Alexander was born in eighteen seventy one,
and Jessica Mattier, the youngest who also factors into this story,
was born in eighteen seventy four. So we have two parents,
six children, and what was really a pretty progressive approach
(03:19):
to raising children at the time, The Hills encouraged their
children to play. They encouraged free play and independent thought
and exploratory learning. UM. So it wasn't a lot of
children should be seen and not heard here read this book.
They were much more into their children being active and creative.
And they also encouraged their daughters to pursue careers, which
was not unheard of but was also not super common
(03:42):
at the time. Uh. And the two sisters that wrote
Happy Birthday actually went on to really interesting careers with
their own. Patti Smith Hill became a very renowned educator,
and she's really recognized her pioneering some new approaches to
early childhood learning, and she's actually often credited with shaping
(04:02):
the modern kindergarten as we know it. Her sister, Mildred J. Hill,
was an accomplished music scholar and a composer. She wrote
several pieces on the importance of Negro spirituals as a
corner stone of American music. UM. And she's believed to
have written a groundbreaking analysis on the subject under the
pen name Johann Tonsor. We'll put a link to that
(04:24):
article in our show notes. So that was under a
pen name, not a hundred percent sure on the identity
of the person who wrote it, but It's believed to
be the work of Mildred J. Hill, but their legacy
really is, for most people, the happy Birthday to Youth
song UH. And the song didn't quite start as a
(04:45):
birthday celebration song. So it started when the sisters were
both teaching in Louisville in nine and at that point,
Patty had just gotten out of UH school and was
just starting her job teaching, and the two originally conceived
of a song UH, which is a little ditty called
good Morning to All that would be sung as a
(05:06):
classroom greeting with the very simple lyrics of good morning
to you, good morning to you, good morning, dear children,
good morning to all. I remember singing this in preschool,
except that we didn't say all at the end. We
just said you another time. I think a lot of
UM students did similar things. UH and Patty wrote the
(05:28):
lyrics and Mildred wrote the music to it, and their
good Morning song was published in a song book called
Song Stories for the Kindergarten in and it's one of
those things that I think people here and they're like,
that's a really simple song. Can you really claim anybody
who wrote that? But you can. It's simple, but it's
(05:49):
designed to be because they were trying to come up
with tunes that could teach children um music very easily,
like a kid can repeat that song having heard it
only once or twice at the most right, it does
not take long to learn Happy Birthday to you, and
it actually is a little deceptive in its simplicity. This
is one of my favorite things that I learned about
(06:11):
Happy Birthday, and this whole outline that Holly has has
given to me today. Stephanie Anne Goldberg, who was writing
for the Smart Set and republished in The Utney reader In,
pointed out that the song it really has a subtle
complexity to it, and to quote her, maybe you never
realized it, but inside the Happy Birthday song is a
(06:31):
waltz reminiscent of the Blue Danube waltz. You can alternate
singing the two as you dance to get a better
sense of their similarity. That delights me. It's pretty cool.
I did not realize ever, having been singing, you know,
Happy Birthday for thirty something years, but it's a waltz.
(06:51):
And she in um in her article, which is another
one that will link to in the show notes, she
kind of talks you through how to do the box
step and count the numbers so you can do them
at the same time, which I did not test, but
it made sense in my head as I read it
as like a kind of envision doing now and now
now I really want a happy birthday polka because you
can also you can. It's not it's a step from
(07:13):
waltz to polka. I guarantee there's a recording of it
in polka. There has to be. Uh. And the beauty
of such a simple tune as well is that it's
really easily adaptable, which is why, for example, You're school
growing up changed the lyrics a little bit because a
lot of people do uh. And after the song's publication
in it became popularly used in education, and it did
evolve uh. You know, teachers could easily switch out words,
(07:37):
and it also kind of changed to become a way
for students to greet their teachers, rather than the apparent
initial intent of the lyrics, which was sounded much more
like a teacher greeting students. But it kind of took
on a life of its own in the education realm
at the time because again, it was easily adaptable. So
unlike today, when the song was first published in eight,
(07:58):
there was no public performance right for musical compositions. Composers
didn't have any kind of legal right or recourse to
prevent other people from performing their music. They could only
prevent other people from printing and selling sheet music. So
as CAP, which is the American Society of Composers, Authors
and Publishers, which is the organization that deals a lot
(08:19):
with these kinds of music rights, wasn't founded until nineteen fourteen.
So in eight the whole question of who can sing
Happy Birthday and where was not really a legal question. Well,
and it wasn't happy birthday yet, so it was good
morning at that point. Still, so when exactly good Morning
to all transitioned from being a classroom greeting to a
birthday standard is actually not clear. At some point a
(08:43):
second stanza, the happy Birthday to you lyrics that we
all know began appearing in publications of the song. The
first known book including the combination is The Beginner's Book
of Songs, which was published by a piano manufacturer company,
the Cable Company, in nineteen twelve, and it was later
re published by the Cable Company in the One Best
Songs and probably in some other editions of those two books.
(09:09):
Now it also appears in some other places, though, is
the two stands a Good Morning and Happy Birthday versions.
The first of these is The Golden Book of Favorite Songs,
which was compiled and edited by N. H. H. In nine,
and the other is The Children's Book of Praise and Worship,
which was published by the Warner Press in ninety eight.
(09:32):
And there are several hymnals and compilations that were edited
by Robert H. Coleman as well UH throughout those years
that include both stanzas and there's also there's actually been
some debate about whether Coleman wrote the Happy Birthday lyrics.
Um Robert brown Eyes, who will talk about a lot
in this podcast, wrote a paper called Copyright in the
(09:52):
World's most Popular Song, and he mentions in his erata
page for the article that Coleman's grandson has actually asserted
that his and father penned the lyrics, but since those
lyrics have been published as early as nineteen twelve, which
is long before Coleman's compilations, it seems a little bit unlikely. However,
a lot of articles on the subject seemed to incorrectly
(10:14):
cite nine Songbook that Coleman edited as the first appearance
of the second stance of Birthday Greeting. But brown Eye says, really,
he's pretty much a happy Birthday scholar at this point,
and he has unearthed these um like the Cable company
publications and some of these others where it showed up,
So it doesn't really seem likely that um Coleman actually
(10:35):
wrote that stanza, although in his own notes, brown Eyes
mentions it's there's very simple words. It's entirely conceivable that
he wrote them, but that they already existed, like two
people could have come up with those same lyrics. I
love that we live in a world where someone can
be the happy Birthday scholar. He's really done a great
(10:57):
deal of research on it. Yes, So thanks to ray
e O and Talkies, the Happy Birthday version of the
song became really popular. It's sort of filled a nature
of birthday celebration songs. Yeah, there really wasn't another to
the best of my knowledge prior to that. There doesn't
really seem to be another now, except for they might
be Giants, which we just talked about, which is only
(11:18):
a replacement if you're a nerd. Well, and there's a
version from the Simpsons that I like to sing, but
that's completely different. And I think it's only on there
because they didn't want to pay the licensing to do
Happy Birthday. Uh. But by the time the song was
becoming a standard part of birthday celebrations, we should note
that Mildred was already deceased. She died at the age
(11:38):
of fifty six in June of nine. But as the
song's popularity expanded, it started showing up in films and plays,
and it was actually even used for Western Unions first
singing Telegram. So the song was kind of taking on
a life of its own as the Happy Birthday song,
right and then, as often happens, people kind of realize
(11:59):
that her work was being appropriated without them being compensated
for it. So Jessica the Sister, the third Hill Sister,
stepped in after in nineteen thirty four, when the song
appeared in the Irving Berlin musical as Thousands Cheer, with
no credit or compensation going to Patty, who was at
that point the surviving of the two sisters who had
(12:22):
created the song. So Jessica wanted to ensure that her
sisters received credit for their creation and any compensation they
would due, and so in August of four she actually
filed suit against Broadway producer Sam Harris and then eventually
also named in that suit was his production company, the
composer Irving Berlin, and the playwright Moss Heart that worked
(12:42):
on his thousands cheer. And the case never got to judgment.
It kind of petered out. They didn't pursue it, but
it did get into the deposition stage, and both Jessica
and Patty gave depositions. And this is a snippet of
Patty's deposition. So do you want to read Patty's be
the little play? So Patty said, while only the words
(13:03):
good morning to all were put in the book, we
used it for goodbye to you, happy journey to you,
Happy Christmas to you, Happy New Year to you, Happy
vacation to you, and so forth and so on. Did
you also use the words happy birthday to you? We
certainly did with every birthday celebration in the school. So
Patty was establishing that when they were using this as
(13:25):
a teaching song back in the Good Morning to All days,
they were completely changing up the lyrics as needed to
fit virtually any occasion, because again, they were still using
it to teach children, and it was easily easy for
children to repeat back right. So Jessica testified that while
there were many versions of the lyrics to her sister's song,
(13:46):
she particularly remembered singing good morning to all and Happy
Birthday to you. And as I said, the case seems
to have petered out. There was neither a judgment nor
a settlement, and it actually came up later in additional
copyright discussion that the case could be revisited. But despite
the fact that it kind of got put on pause
at this point, Jessica went ahead and secured the copyright
(14:07):
to Happy Birthday to You in late nineteen thirty four,
and then she worked with the Clayton F. Sumi Company
of Chicago to publish and copyright the tune is Happy
Birthday in nineteen thirty five. So at the time, copyright
laws would have given them at twenty eight year term
plus one renewal of the same length, and that would
have seen the song move into public domain in but
(14:31):
copyright law has changed through the years, so much so
in the Copyright Act of nineteen seventy six, the law
was amended to grant copyright for seventy five years after
the date of publication, which then would have moved the
expiration to Then the passing of the Copyright Term Extension
Act in added another twenty years to the copyright, so
(14:52):
that time now extends to t And what's interesting now
is to kind of see where the ownership has landed
on this song. A few years after the Clayton F.
Summi Company published and copyrighted it, a New York accountant
named John Singstack purchased the company and renamed it Birch
Tree Limited. In Warner Chapel purchased Birch Tree, which then
(15:16):
became Summy Birchard Music. Summy Birchard is Time as part
of Time Warner, which makes Happy Birthday a part of
the Time Warner groups holdings. Uh So now royalties for
performances of Happy Birthday are actually split between Time Warner
and the Hill Foundation. Jessica Hill died in eighteen fifty one,
so royalties for Happy Birthday have since been paid into
(15:38):
the Hill Foundation Trust, which she established as part of
her will. And this is the part that to me
becomes the pivotal moment in the whole You can't sing
happy Birthday is It's Time Warner is a big company.
That is an enormous company to own something as simple
as Happy Birthday to you. So, Patti Smith Hill died
eleven years after Happy Birthday was copyrighted, which was on
(16:01):
ma that was her death, that was when she died.
Neither she nor Mildred had married or had children. And
who receives the Hill Foundation's money isn't disclosed anywhere, but
it's believed that it goes either to charity or to
the Hill's nephew, or maybe a split between the two
of them. And it's estimated that their rights to the
(16:23):
song or licensed approximately two hundred times per year, and
that's on a sliding payment scale, kind of like what
your audience reaches and what you're likely to make off
of it will determine how much they charge you to
perform it in public. But it brings in roughly two
million dollars annually, which I think is a little mind boggling.
(16:43):
It is, and it makes me wish I had written
a four line song that could be licensed by everyone
all the time. UH. And there have been a number
of legal actions through the years to enforce the rights
to Happy Birthday. UH. And if any of our listeners
ever watched the show Sportsnight. They actually had an episode
about it where one of the characters sang it to
his co host on the broadcast, not knowing that it
(17:06):
was a copyrighted piece, and then of course lawyers got
involved and there was much, um incredulous talk of no,
really that's copyrighted. But but the legality involved in this
song has actually come into question in recent years. So
going back to the work of Robert browne Ie and
his paper copyright in the World's most Popular song, and
(17:28):
just to establish sort of his credentials, he's the co
director of the Intellectual Property Law Program, he's co director
of the deemed Dinwoody Center for Intellectual Property Studies, and
he is a member of the managing board of Munich
Intellectual Property Law Center. All of that at George Washington
University or the first two. And he has really questioned
the legitimacy of this copyright. He's, you know, a law
(17:52):
professor who studies copyright law specifically, and he has, like
we've said, really become a scholar on this matter. His
work is impeccable in terms of like the records he
keeps will link to all of this so you can
really follow along his research. That he's gone through through
the years, and he even his errata page online gets
(18:13):
updated constantly with when people have written in with other
pieces of the puzzle, or things that they have heard
that can be verified about sort of things that have
happened along the way with Happy Birthday. Those all get updated,
it seems quite constantly. So it's a really fascinating read,
particularly if you are into law. So in addition to
being the Happy Birthday scholar, he's also essentially an expert
(18:34):
on intellectual property and is actively looking at this all
the time, and he makes the case that the song
is really similar to folk music that predated it. Uh
to quote part of his paper, he says, Moreover, many
have suggested that notwithstanding the attribution of the song to
the Hill Sisters, it is so much like other previous
songs that it should be treated as having arisen from
(18:55):
a folk tradition rather than the creative talents of a
particular author. And in some cases they even linked that
back to Mildred's expertise in negro spirituals and how she
studied folk music extensively, and how clearly that's feeding into
her writing of this, because that first piece that she
wrote theoretically, as Johann consore was happening that was published
(19:16):
very close to the time that this song was also published,
so there's some discussion there right. Brown Eyes also points
out that there's no clear authorship of the Happy Birthday lyrics,
So while Patty said in her deposition that they sang
the Happy Birthday version of the song, it's never explicitly
stated that she wrote those exact words. And he also
(19:36):
draw the attention to the fact that he's never been
able to find a renewal to the copyright. He has
found filings for other specific arrangements of the music, but
this suggests that the tune wouldn't have qualified to benefit
from the extension afforded by the Copyright Act of nineteen
seventy six, so that they had actually kind of dropped
the ball. Someone had dropped the ball on their end
(19:58):
in terms of that initial twenty eight years and a
renewal that was allowed. The renewal never that it didn't happen.
If it ever did happen, we don't have a clear
documentation of that. So brown eyes research is extremely thorough.
He finds all kinds of flaws in the life of
the composition and all of its various layers, apart from
(20:19):
the major one of not being able to find the
original renewal of the copyright. So he's pointed out lots
and lots of problems in its copyright status. And don't
worry about it. As we said, you can still sing
it at a private birthday party because that's not considered
public performance and nobody's making money off of you singing
happy birthday to your friend. Right, and in uh the
(20:40):
errata that brown Ice mentions, he says that there's a
gray area even for white staff at a restaurant performing
this song for guests. Some people have argued, like that's
an extra thing. It's not something those people are being
paid for, like you're not paid performers. He points out
that you could consider that an indirect profitmaking thing because
it's a a value add to your meal. Um, But
(21:03):
in most establishments air on the side of caution. And
that's why when you go out to you know, your
friendly neighborhood or chain bar and grill, they sing like
a really weird custom birthday song. Right, they sing it
on a nerd boat. There's a there's a running joke
on a nerd boat, which is a vacation that I
take annually, that that it's always Mike Ferman's birthday. Mike
(21:24):
Ferman is a comedian a musician if you don't know
who that is. And and so there were there was
more than one singing of Happy Birthday on the boat
to Mike Ferman in various different versions. No, it was.
It was the normal one, just with somebody holding the
final you for as long as possible. So I kind
of wonder now is the cruise line are they paying
(21:46):
some kind of royalty or are they hoping for gray area?
They're in international waters, so who knows well. And one
of the things that Browne I mentioned to you, and
it's come up if you google the legality of Happy
Birthday and its copyright, it will come up in a
lot of legal blogs because it has been discussed a
lot in recent years. And several people point out that
(22:07):
at this point it's possible that, um, there has been
a little bit of a back off on trying to
you know, follow through and make sure people pay license
and going after people that don't get license to perform it,
because it could draw attention to the fact that there
might be some uh, sort of improperly filled out forms
(22:27):
some blank holes in the legal line of ownership of
this song, and so at this point it's kind of like, no,
that's fine, you can see we're okay with that. Yeah,
And it would I mean brown I mentioned specifically in
his paper that even if someone wanted to go after
this you could because it is there are problems, but
it would be extremely costly, particularly because at this point
(22:50):
there have been so many licensees and so much money
paid to Time Warner and the previous owners before that,
that it would get legally very messy and caused just
a lot of time and money to be spent. And
most people don't think it's worth it, right, But you
would need to just know from the outset that you
needed to have more money than Time Warner, which is
a quite a lot of money. That's a pretty high
(23:13):
bar to set to start a legal proceeding, right, Maybe
not more money than Time Warner, but more money than
Time Warner would be really willing to spend on it. Yeah,
So yes, I would probably be a lot. Yeah. So
it's a such a simple song with such a sort
of fascinating history. I think it's fascinating to read sort
of the depositions about. There's much more than what we read.
(23:34):
Just these people, you know, being asked about this simple,
simple kindergarten song. It's kind of fascinating, right. I like
how some other other people have written their own little
birthday songs, maybe in response to this, maybe just to
be fun, and maybe we'll put some of them out
on our Facebook and Twitter after this episode. And I
believe you have a listener mail certainly, so this one
(23:57):
comes from our listener, Haley, and she says, Hi, Tracy
and Holly, I'm presuming it's a she. If it's not,
I apologize. Thanks for your recent podcasts on Australian history.
As an Australian listening to your podcast, I sometimes get
lost in the details of American history, so I was
particularly excited to hear you talk about the rabbit proof fence,
though I had never heard of the EMU or EMU.
(24:19):
We've had much discussion about the correct pronunciation wars in
the United States. Either is fine. Either is fine, but
apparently not oversease. Uh, don't worry. I've informed everyone I
know about this quirky part of our history. Now and
she offers to tell us a story, which is that
today Rabbits are indeed a huge pest and problem. Where
I live in the suburbs of Northern Sydney. I crossed
(24:40):
at least one rabbit as I walk home from the
bus stop every day, but my grandmother remembers them quite
fondly for her family and many others. Rabbits during the
Great Depression kept families alive as their population was so large,
and at that time in Australia, firearms were widely available.
Rabbits were used for food and blankets for those who
couldn't afford to buy the saying they could also be
(25:01):
used to supplement your income. This was done most famously
by the members of the South Sydney Rugby League team
in this era, earning them the nicknames the Rabbit Hose,
which is still the official name of their club today.
I'm surprised you didn't refer to mixomatosis, the disease that
was introduced in the nineteen fifties to curb the rabbit population.
It was actually quite successful until the resistant population went
(25:23):
on to breed and the population got back to about
the same by the end of the century. Yes, so
I I was the research doer on that one and
that's the disease that we were talking about when we
mentioned that today disease is one of the ways that
Australia tries to control rabbit population. The reason that I
didn't get into that is because in my research I
(25:45):
unearthed all these papers about other diseases that maybe could
be good to introduce to rabbits to control their population,
and they were full of these heartbreaking images of sick
rabbits and it just made me very sad. So I
didn't want to go into more detail, um about that
particular aspect of it in the podcast. It's tricky, you know,
(26:07):
we recognize that their pest, but it's still hard to
kind of yeah, ntially ready to deal with that well.
And when I when I sent the outline over to
Holly to look at, I had a note by the
one of the links that said, Holly, don't look at this.
It's full of pictures of sick rabbits. Yeah, I'm crazy
animal Lady tracy N. I couldn't handle it. But if
(26:28):
you would like to write to us, you can also
do so. And that is a history podcast at Discovery
dot com. You can also connect with us on Twitter
at missed in History on Facebook at Facebook dot com,
slash history, class stuff, and I'm We also have a
tumbler which is missed in History dot tumbler dot com,
and we're also on Pinterest. If you would like to
(26:48):
learn more about what we've discussed today, you can go
to our website and type in the words happy Birthday
and you will turn up an article called how music
Licensing Works, which does discuss Happy Birthday a little bit.
If you would like to arn about that, or anything
else your mind can conjure, you can do so at
our website, which is how stuff Works dot com. For
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(27:09):
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Welcome to Stuff You missed in History class from how
Stuff Works dot com. Hello, and welcome to the podcast.
I'm Holly Friend and I am Tracy V. Wilson, and
(00:21):
today we're going to talk about a thing that everybody knows. Yes, uh,
everybody knows the song Happy Birthday to You pretty much everybody.
Even if you don't sing it for whatever reason, you
probably know how it goes. I don't enjoy it at
my birthday. I would rather people saying you're older than
you've ever been and now you're getting older. Oh yeah,
that one's fun. Thanks. They might be giants. Mine is
(00:43):
mostly a problem of people start Happy Birthday too high,
and then when they get to that third line they
really have to stretch, and everybody sounds a little dicey.
Mine is that I don't like to sing in front
of other people. Well, I don't mean, and I'm very
self conscious about my voice and whether I am off key. Well,
that's a whole other bollow ax for me. I'm singing
does not happen in front of other people, but so
(01:05):
Happy Birthday to You is one of the three most
popular songs in the English language, and it's been translated
and published in so many other languages. But sometimes people
are still surprised that this song is actually protected under
copyright and cannot be selling in a public performance without
paying royalties. It's one of those things that we hear
so often that surely it must be in the public domain. No,
(01:27):
it is not. It is not. Uh, it came from
a place, it was written by people, and uh, you know,
so we wanted to kind of examine the history of
it and where this simple little tune came from and
why waiters can't sing it in restaurants right. Well, and
that's it's a thing that people can easily interpret as
ridiculous that you can't sing happy Birthday Like that's one
(01:48):
of those this is a dumb legal requirement thing that
people will say. So, yeah, how did we get to
this point? Well, and for clarity and um, talk about
it a little bit more towards the end when we
talk about the current legal state of examination around it,
uh and copyright law. You can't sing it at a
birthday party that's considered a private affair. You just can't
(02:09):
sing it for a public performance anytime you would directly
or indirectly be profiting from it, etcetera. You can't put
it in your movie correct without licensing it. So uh.
The sisters behind the song, Mildred j Hill and Patti
Smith Hill, were actually the daughters of Presbyterian minister Dr.
William Hill, and he actually founded the Bellwood Female Seminary.
(02:31):
And their mother was Martha Hill, who studied college courses
through private tutoring at Center College, but she was never
granted a formal degree because of her gender. And they
actually had an interesting family. They had six children, So
there was Mildred Jane who was the eldest. She was
born in June of eighteen fifty nine, Mary Downing Hill
who was born in eighteen sixty four, William Wallace Hill
(02:55):
born in eighteen sixty six. Patty, the other sister Germaine
to this songwriting story, was born in March of eighteen
sixty eight. Archibald Alexander was born in eighteen seventy one,
and Jessica Mattier, the youngest who also factors into this story,
was born in eighteen seventy four. So we have two parents,
six children, and what was really a pretty progressive approach
(03:19):
to raising children at the time, The Hills encouraged their
children to play. They encouraged free play and independent thought
and exploratory learning. UM. So it wasn't a lot of
children should be seen and not heard here read this book.
They were much more into their children being active and creative.
And they also encouraged their daughters to pursue careers, which
was not unheard of but was also not super common
(03:42):
at the time. Uh. And the two sisters that wrote
Happy Birthday actually went on to really interesting careers with
their own. Patti Smith Hill became a very renowned educator,
and she's really recognized her pioneering some new approaches to
early childhood learning, and she's actually often credited with shaping
(04:02):
the modern kindergarten as we know it. Her sister, Mildred J. Hill,
was an accomplished music scholar and a composer. She wrote
several pieces on the importance of Negro spirituals as a
corner stone of American music. UM. And she's believed to
have written a groundbreaking analysis on the subject under the
pen name Johann Tonsor. We'll put a link to that
(04:24):
article in our show notes. So that was under a
pen name, not a hundred percent sure on the identity
of the person who wrote it, but It's believed to
be the work of Mildred J. Hill, but their legacy
really is, for most people, the happy Birthday to Youth
song UH. And the song didn't quite start as a
(04:45):
birthday celebration song. So it started when the sisters were
both teaching in Louisville in nine and at that point,
Patty had just gotten out of UH school and was
just starting her job teaching, and the two originally conceived
of a song UH, which is a little ditty called
good Morning to All that would be sung as a
(05:06):
classroom greeting with the very simple lyrics of good morning
to you, good morning to you, good morning, dear children,
good morning to all. I remember singing this in preschool,
except that we didn't say all at the end. We
just said you another time. I think a lot of
UM students did similar things. UH and Patty wrote the
(05:28):
lyrics and Mildred wrote the music to it, and their
good Morning song was published in a song book called
Song Stories for the Kindergarten in and it's one of
those things that I think people here and they're like,
that's a really simple song. Can you really claim anybody
who wrote that? But you can. It's simple, but it's
(05:49):
designed to be because they were trying to come up
with tunes that could teach children um music very easily,
like a kid can repeat that song having heard it
only once or twice at the most right, it does
not take long to learn Happy Birthday to you, and
it actually is a little deceptive in its simplicity. This
is one of my favorite things that I learned about
(06:11):
Happy Birthday, and this whole outline that Holly has has
given to me today. Stephanie Anne Goldberg, who was writing
for the Smart Set and republished in The Utney reader In,
pointed out that the song it really has a subtle
complexity to it, and to quote her, maybe you never
realized it, but inside the Happy Birthday song is a
(06:31):
waltz reminiscent of the Blue Danube waltz. You can alternate
singing the two as you dance to get a better
sense of their similarity. That delights me. It's pretty cool.
I did not realize ever, having been singing, you know,
Happy Birthday for thirty something years, but it's a waltz.
(06:51):
And she in um in her article, which is another
one that will link to in the show notes, she
kind of talks you through how to do the box
step and count the numbers so you can do them
at the same time, which I did not test, but
it made sense in my head as I read it
as like a kind of envision doing now and now
now I really want a happy birthday polka because you
can also you can. It's not it's a step from
(07:13):
waltz to polka. I guarantee there's a recording of it
in polka. There has to be. Uh. And the beauty
of such a simple tune as well is that it's
really easily adaptable, which is why, for example, You're school
growing up changed the lyrics a little bit because a
lot of people do uh. And after the song's publication
in it became popularly used in education, and it did
evolve uh. You know, teachers could easily switch out words,
(07:37):
and it also kind of changed to become a way
for students to greet their teachers, rather than the apparent
initial intent of the lyrics, which was sounded much more
like a teacher greeting students. But it kind of took
on a life of its own in the education realm
at the time because again, it was easily adaptable. So
unlike today, when the song was first published in eight,
(07:58):
there was no public performance right for musical compositions. Composers
didn't have any kind of legal right or recourse to
prevent other people from performing their music. They could only
prevent other people from printing and selling sheet music. So
as CAP, which is the American Society of Composers, Authors
and Publishers, which is the organization that deals a lot
(08:19):
with these kinds of music rights, wasn't founded until nineteen fourteen.
So in eight the whole question of who can sing
Happy Birthday and where was not really a legal question. Well,
and it wasn't happy birthday yet, so it was good
morning at that point. Still, so when exactly good Morning
to all transitioned from being a classroom greeting to a
birthday standard is actually not clear. At some point a
(08:43):
second stanza, the happy Birthday to you lyrics that we
all know began appearing in publications of the song. The
first known book including the combination is The Beginner's Book
of Songs, which was published by a piano manufacturer company,
the Cable Company, in nineteen twelve, and it was later
re published by the Cable Company in the One Best
Songs and probably in some other editions of those two books.
(09:09):
Now it also appears in some other places, though, is
the two stands a Good Morning and Happy Birthday versions.
The first of these is The Golden Book of Favorite Songs,
which was compiled and edited by N. H. H. In nine,
and the other is The Children's Book of Praise and Worship,
which was published by the Warner Press in ninety eight.
(09:32):
And there are several hymnals and compilations that were edited
by Robert H. Coleman as well UH throughout those years
that include both stanzas and there's also there's actually been
some debate about whether Coleman wrote the Happy Birthday lyrics.
Um Robert brown Eyes, who will talk about a lot
in this podcast, wrote a paper called Copyright in the
(09:52):
World's most Popular Song, and he mentions in his erata
page for the article that Coleman's grandson has actually asserted
that his and father penned the lyrics, but since those
lyrics have been published as early as nineteen twelve, which
is long before Coleman's compilations, it seems a little bit unlikely. However,
a lot of articles on the subject seemed to incorrectly
(10:14):
cite nine Songbook that Coleman edited as the first appearance
of the second stance of Birthday Greeting. But brown Eye says, really,
he's pretty much a happy Birthday scholar at this point,
and he has unearthed these um like the Cable company
publications and some of these others where it showed up,
So it doesn't really seem likely that um Coleman actually
(10:35):
wrote that stanza, although in his own notes, brown Eyes
mentions it's there's very simple words. It's entirely conceivable that
he wrote them, but that they already existed, like two
people could have come up with those same lyrics. I
love that we live in a world where someone can
be the happy Birthday scholar. He's really done a great
(10:57):
deal of research on it. Yes, So thanks to ray
e O and Talkies, the Happy Birthday version of the
song became really popular. It's sort of filled a nature
of birthday celebration songs. Yeah, there really wasn't another to
the best of my knowledge prior to that. There doesn't
really seem to be another now, except for they might
be Giants, which we just talked about, which is only
(11:18):
a replacement if you're a nerd. Well, and there's a
version from the Simpsons that I like to sing, but
that's completely different. And I think it's only on there
because they didn't want to pay the licensing to do
Happy Birthday. Uh. But by the time the song was
becoming a standard part of birthday celebrations, we should note
that Mildred was already deceased. She died at the age
(11:38):
of fifty six in June of nine. But as the
song's popularity expanded, it started showing up in films and plays,
and it was actually even used for Western Unions first
singing Telegram. So the song was kind of taking on
a life of its own as the Happy Birthday song,
right and then, as often happens, people kind of realize
(11:59):
that her work was being appropriated without them being compensated
for it. So Jessica the Sister, the third Hill Sister,
stepped in after in nineteen thirty four, when the song
appeared in the Irving Berlin musical as Thousands Cheer, with
no credit or compensation going to Patty, who was at
that point the surviving of the two sisters who had
(12:22):
created the song. So Jessica wanted to ensure that her
sisters received credit for their creation and any compensation they
would due, and so in August of four she actually
filed suit against Broadway producer Sam Harris and then eventually
also named in that suit was his production company, the
composer Irving Berlin, and the playwright Moss Heart that worked
(12:42):
on his thousands cheer. And the case never got to judgment.
It kind of petered out. They didn't pursue it, but
it did get into the deposition stage, and both Jessica
and Patty gave depositions. And this is a snippet of
Patty's deposition. So do you want to read Patty's be
the little play? So Patty said, while only the words
(13:03):
good morning to all were put in the book, we
used it for goodbye to you, happy journey to you,
Happy Christmas to you, Happy New Year to you, Happy
vacation to you, and so forth and so on. Did
you also use the words happy birthday to you? We
certainly did with every birthday celebration in the school. So
Patty was establishing that when they were using this as
(13:25):
a teaching song back in the Good Morning to All days,
they were completely changing up the lyrics as needed to
fit virtually any occasion, because again, they were still using
it to teach children, and it was easily easy for
children to repeat back right. So Jessica testified that while
there were many versions of the lyrics to her sister's song,
(13:46):
she particularly remembered singing good morning to all and Happy
Birthday to you. And as I said, the case seems
to have petered out. There was neither a judgment nor
a settlement, and it actually came up later in additional
copyright discussion that the case could be revisited. But despite
the fact that it kind of got put on pause
at this point, Jessica went ahead and secured the copyright
(14:07):
to Happy Birthday to You in late nineteen thirty four,
and then she worked with the Clayton F. Sumi Company
of Chicago to publish and copyright the tune is Happy
Birthday in nineteen thirty five. So at the time, copyright
laws would have given them at twenty eight year term
plus one renewal of the same length, and that would
have seen the song move into public domain in but
(14:31):
copyright law has changed through the years, so much so
in the Copyright Act of nineteen seventy six, the law
was amended to grant copyright for seventy five years after
the date of publication, which then would have moved the
expiration to Then the passing of the Copyright Term Extension
Act in added another twenty years to the copyright, so
(14:52):
that time now extends to t And what's interesting now
is to kind of see where the ownership has landed
on this song. A few years after the Clayton F.
Summi Company published and copyrighted it, a New York accountant
named John Singstack purchased the company and renamed it Birch
Tree Limited. In Warner Chapel purchased Birch Tree, which then
(15:16):
became Summy Birchard Music. Summy Birchard is Time as part
of Time Warner, which makes Happy Birthday a part of
the Time Warner groups holdings. Uh So now royalties for
performances of Happy Birthday are actually split between Time Warner
and the Hill Foundation. Jessica Hill died in eighteen fifty one,
so royalties for Happy Birthday have since been paid into
(15:38):
the Hill Foundation Trust, which she established as part of
her will. And this is the part that to me
becomes the pivotal moment in the whole You can't sing
happy Birthday is It's Time Warner is a big company.
That is an enormous company to own something as simple
as Happy Birthday to you. So, Patti Smith Hill died
eleven years after Happy Birthday was copyrighted, which was on
(16:01):
ma that was her death, that was when she died.
Neither she nor Mildred had married or had children. And
who receives the Hill Foundation's money isn't disclosed anywhere, but
it's believed that it goes either to charity or to
the Hill's nephew, or maybe a split between the two
of them. And it's estimated that their rights to the
(16:23):
song or licensed approximately two hundred times per year, and
that's on a sliding payment scale, kind of like what
your audience reaches and what you're likely to make off
of it will determine how much they charge you to
perform it in public. But it brings in roughly two
million dollars annually, which I think is a little mind boggling.
(16:43):
It is, and it makes me wish I had written
a four line song that could be licensed by everyone
all the time. UH. And there have been a number
of legal actions through the years to enforce the rights
to Happy Birthday. UH. And if any of our listeners
ever watched the show Sportsnight. They actually had an episode
about it where one of the characters sang it to
his co host on the broadcast, not knowing that it
(17:06):
was a copyrighted piece, and then of course lawyers got
involved and there was much, um incredulous talk of no,
really that's copyrighted. But but the legality involved in this
song has actually come into question in recent years. So
going back to the work of Robert browne Ie and
his paper copyright in the World's most Popular song, and
(17:28):
just to establish sort of his credentials, he's the co
director of the Intellectual Property Law Program, he's co director
of the deemed Dinwoody Center for Intellectual Property Studies, and
he is a member of the managing board of Munich
Intellectual Property Law Center. All of that at George Washington
University or the first two. And he has really questioned
the legitimacy of this copyright. He's, you know, a law
(17:52):
professor who studies copyright law specifically, and he has, like
we've said, really become a scholar on this matter. His
work is impeccable in terms of like the records he
keeps will link to all of this so you can
really follow along his research. That he's gone through through
the years, and he even his errata page online gets
(18:13):
updated constantly with when people have written in with other
pieces of the puzzle, or things that they have heard
that can be verified about sort of things that have
happened along the way with Happy Birthday. Those all get updated,
it seems quite constantly. So it's a really fascinating read,
particularly if you are into law. So in addition to
being the Happy Birthday scholar, he's also essentially an expert
(18:34):
on intellectual property and is actively looking at this all
the time, and he makes the case that the song
is really similar to folk music that predated it. Uh
to quote part of his paper, he says, Moreover, many
have suggested that notwithstanding the attribution of the song to
the Hill Sisters, it is so much like other previous
songs that it should be treated as having arisen from
(18:55):
a folk tradition rather than the creative talents of a
particular author. And in some cases they even linked that
back to Mildred's expertise in negro spirituals and how she
studied folk music extensively, and how clearly that's feeding into
her writing of this, because that first piece that she
wrote theoretically, as Johann consore was happening that was published
(19:16):
very close to the time that this song was also published,
so there's some discussion there right. Brown Eyes also points
out that there's no clear authorship of the Happy Birthday lyrics,
So while Patty said in her deposition that they sang
the Happy Birthday version of the song, it's never explicitly
stated that she wrote those exact words. And he also
(19:36):
draw the attention to the fact that he's never been
able to find a renewal to the copyright. He has
found filings for other specific arrangements of the music, but
this suggests that the tune wouldn't have qualified to benefit
from the extension afforded by the Copyright Act of nineteen
seventy six, so that they had actually kind of dropped
the ball. Someone had dropped the ball on their end
(19:58):
in terms of that initial twenty eight years and a
renewal that was allowed. The renewal never that it didn't happen.
If it ever did happen, we don't have a clear
documentation of that. So brown eyes research is extremely thorough.
He finds all kinds of flaws in the life of
the composition and all of its various layers, apart from
(20:19):
the major one of not being able to find the
original renewal of the copyright. So he's pointed out lots
and lots of problems in its copyright status. And don't
worry about it. As we said, you can still sing
it at a private birthday party because that's not considered
public performance and nobody's making money off of you singing
happy birthday to your friend. Right, and in uh the
(20:40):
errata that brown Ice mentions, he says that there's a
gray area even for white staff at a restaurant performing
this song for guests. Some people have argued, like that's
an extra thing. It's not something those people are being
paid for, like you're not paid performers. He points out
that you could consider that an indirect profitmaking thing because
it's a a value add to your meal. Um, But
(21:03):
in most establishments air on the side of caution. And
that's why when you go out to you know, your
friendly neighborhood or chain bar and grill, they sing like
a really weird custom birthday song. Right, they sing it
on a nerd boat. There's a there's a running joke
on a nerd boat, which is a vacation that I
take annually, that that it's always Mike Ferman's birthday. Mike
(21:24):
Ferman is a comedian a musician if you don't know
who that is. And and so there were there was
more than one singing of Happy Birthday on the boat
to Mike Ferman in various different versions. No, it was.
It was the normal one, just with somebody holding the
final you for as long as possible. So I kind
of wonder now is the cruise line are they paying
(21:46):
some kind of royalty or are they hoping for gray area?
They're in international waters, so who knows well. And one
of the things that Browne I mentioned to you, and
it's come up if you google the legality of Happy
Birthday and its copyright, it will come up in a
lot of legal blogs because it has been discussed a
lot in recent years. And several people point out that
(22:07):
at this point it's possible that, um, there has been
a little bit of a back off on trying to
you know, follow through and make sure people pay license
and going after people that don't get license to perform it,
because it could draw attention to the fact that there
might be some uh, sort of improperly filled out forms
(22:27):
some blank holes in the legal line of ownership of
this song, and so at this point it's kind of like, no,
that's fine, you can see we're okay with that. Yeah,
And it would I mean brown I mentioned specifically in
his paper that even if someone wanted to go after
this you could because it is there are problems, but
it would be extremely costly, particularly because at this point
(22:50):
there have been so many licensees and so much money
paid to Time Warner and the previous owners before that,
that it would get legally very messy and caused just
a lot of time and money to be spent. And
most people don't think it's worth it, right, But you
would need to just know from the outset that you
needed to have more money than Time Warner, which is
a quite a lot of money. That's a pretty high
(23:13):
bar to set to start a legal proceeding, right, Maybe
not more money than Time Warner, but more money than
Time Warner would be really willing to spend on it. Yeah,
So yes, I would probably be a lot. Yeah. So
it's a such a simple song with such a sort
of fascinating history. I think it's fascinating to read sort
of the depositions about. There's much more than what we read.
(23:34):
Just these people, you know, being asked about this simple,
simple kindergarten song. It's kind of fascinating, right. I like
how some other other people have written their own little
birthday songs, maybe in response to this, maybe just to
be fun, and maybe we'll put some of them out
on our Facebook and Twitter after this episode. And I
believe you have a listener mail certainly, so this one
(23:57):
comes from our listener, Haley, and she says, Hi, Tracy
and Holly, I'm presuming it's a she. If it's not,
I apologize. Thanks for your recent podcasts on Australian history.
As an Australian listening to your podcast, I sometimes get
lost in the details of American history, so I was
particularly excited to hear you talk about the rabbit proof fence,
though I had never heard of the EMU or EMU.
(24:19):
We've had much discussion about the correct pronunciation wars in
the United States. Either is fine. Either is fine, but
apparently not oversease. Uh, don't worry. I've informed everyone I
know about this quirky part of our history. Now and
she offers to tell us a story, which is that
today Rabbits are indeed a huge pest and problem. Where
I live in the suburbs of Northern Sydney. I crossed
(24:40):
at least one rabbit as I walk home from the
bus stop every day, but my grandmother remembers them quite
fondly for her family and many others. Rabbits during the
Great Depression kept families alive as their population was so large,
and at that time in Australia, firearms were widely available.
Rabbits were used for food and blankets for those who
couldn't afford to buy the saying they could also be
(25:01):
used to supplement your income. This was done most famously
by the members of the South Sydney Rugby League team
in this era, earning them the nicknames the Rabbit Hose,
which is still the official name of their club today.
I'm surprised you didn't refer to mixomatosis, the disease that
was introduced in the nineteen fifties to curb the rabbit population.
It was actually quite successful until the resistant population went
(25:23):
on to breed and the population got back to about
the same by the end of the century. Yes, so
I I was the research doer on that one and
that's the disease that we were talking about when we
mentioned that today disease is one of the ways that
Australia tries to control rabbit population. The reason that I
didn't get into that is because in my research I
(25:45):
unearthed all these papers about other diseases that maybe could
be good to introduce to rabbits to control their population,
and they were full of these heartbreaking images of sick
rabbits and it just made me very sad. So I
didn't want to go into more detail, um about that
particular aspect of it in the podcast. It's tricky, you know,
(26:07):
we recognize that their pest, but it's still hard to
kind of yeah, ntially ready to deal with that well.
And when I when I sent the outline over to
Holly to look at, I had a note by the
one of the links that said, Holly, don't look at this.
It's full of pictures of sick rabbits. Yeah, I'm crazy
animal Lady tracy N. I couldn't handle it. But if
(26:28):
you would like to write to us, you can also
do so. And that is a history podcast at Discovery
dot com. You can also connect with us on Twitter
at missed in History on Facebook at Facebook dot com,
slash history, class stuff, and I'm We also have a
tumbler which is missed in History dot tumbler dot com,
and we're also on Pinterest. If you would like to
(26:48):
learn more about what we've discussed today, you can go
to our website and type in the words happy Birthday
and you will turn up an article called how music
Licensing Works, which does discuss Happy Birthday a little bit.
If you would like to arn about that, or anything
else your mind can conjure, you can do so at
our website, which is how stuff Works dot com. For
more on this and thousands of other topics, is it
(27:09):
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