Fifteen Seconds, Twenty-Five Notes, and One of the Most Violated Copyrights Ever, a Musical Mystery

By Drew Holmes

It’s a simple song, made up of only 25 notes and taking about 15 seconds to perform. It holds the Guiness World Record for most recognized song in the English language and has been translated into nearly two dozen more. And until 2015 it was one of the most violated copyrights in history.

It began in a cabin in Kentucky. Patty, a schoolteacher, wanted to greet her students with a song each morning, so she penned lyrics while her sister, Mildred, wrote the melody. This version of the song was published in a volume called Song Stories for Kindergarten in 1893.

After publication this teacher led song evolved and, instead of Patty singing it to her kids, they sang it to her. The simple melody was easily adaptable for other lyrics and Patty changed the words to celebrate special occasions with her students. These alternative verses were published in 1924, eight years after Mildred’s death, but did not include an official copyright notice.

Over the next decade one of these alternate sets of lyrics became hugely popular and was included in the 1931 Broadway musical The Band Wagon. This did not sit well with Jessica, Mildred and Patty’s sister, so she did what any aggrieved American would do — she got a lawyer.

Since Mildred and Patty had never officially copyrighted the song, Jessica engaged the assistance of the Clayton F. Summy Company and secured a copyright to an updated arrangement in 1935. This began a string of legal disputes that lasted nearly a century.

The Summy Company and its copyrights changed hands numerous times, eventually becoming the property of Warner/Chappel in 1988. Warner asserted that they now owned the song in its entirety, whether live performance, audio recording, or film soundtrack, and began vigorously enforcing this claim. Disney paid $5000 just to use it in a parade. A scene from a documentary on Martin Luther King Jr. included the song, but the proposed royalty fees were so exorbitant the DVD release was abandoned altogether.

The song was one of Warner’s most valuable properties, generating estimated revenues of two million dollars annually. But one nagging question remained — did they actually own the rights to the song?

Attorney Robert Brauneis said no. He asserted not only had the original copyright expired in 1963 but it was invalid in the first place since it was unclear if Patty and Mildred even wrote the song, since it bore similarities to other greeting songs popular in the 19th century. Filmmaker Jennifer Nelson made a documentary largely based on Brauneis’ research in 2013 and was quoted a price of $1500 to include the song. So, she did what any aggrieved American would do — she got a lawyer.

Nelson’s ensuing class action suit asserted that the Warner claim to the song was false and demanded a return of all royalties collected. Since all relevant witnesses were long dead by then, the key piece of evidence was a 1922 publication, purchased for $3.00 from Amazon, which included the song and the notice “Special permission through courtesy of the Clayton F Summy Company.”

A September 2015 ruling decided that the Warner claim to the song was only for the specific 1935 arrangement Jessica had copyrighted, not the song in totality. Since there were no other claimants for ownership of it, it then passed into the public domain. Warner Brothers paid $14 million to settle the claims against them and the controversial ownership of the most recognized song ever written was settled.

But that settlement was with the people who sought to legally use the song, not the millions who for decades deliberately performed it without a thought of compensating its alleged creators, sisters Patty and Mildred Hill. People who would gather to celebrate a friend or loved one and share their well wishes for another successful trip around the sun. A celebration culminating in a song lasting about 15 seconds and encompassing 25 notes, performed as the guest of honor patiently waits to blow out the candles while the crowd sings Happy Birthday.