Mildred and Patty Hill rank among the most interesting progressive thinkers in the 19th century, and yet they are popularly remembered only for a copyright debate. Why is a song they didn't precisely write still a corporate moneyspinner, at least 122 years after they published a similar ditty?

The Hills wrote and published "Good Morning To All," which morphed into a more popular rendition: "Happy Birthday To You." A lawsuit filed in 2013 by a documentary filmmaker, Jennifer Nelson, who was working on a movie about the song's history, sought to get a court to determine that the copyright to the song asserted by its current owners, Warner/Chappell, expired in the 1920s, if it ever properly existed.

This suit was nearing its conclusion when a thrilling last-minute piece of evidence emerged from Warner/Chappell: an excerpt of a 1927 title called The Everyday Song Book produced by the piano-making firm, The Cable Company. The song, numbered 16, is called "Good Morning and Birthday Song" with the main lyrics under the score, and "optional" words below for "Happy Birthday." The ostensible copyright notice was blurred in the version supplied by the music company.

Nelson's lawyer noted it was not the first edition, and were able to get a library to dig up the 1922 version. The same version appears there without a legally required statement of copyright. I have obtained a copy of this 1922 edition from an online bookseller. It's a fascinating thing to see in print what has been in dispute for so long.

This would seem to be the end of the line for "Happy Birthday." The filmmaker should prevail; fees collected starting in 2009, within the statute of limitations at the time the suit was filed, should be refunded; and a clear future would be established for public-domain use.

But copyright is a crooked path.

The remarkable Hill sisters

The intricacies of copyright related to "Happy Birthday" need to take a momentary back seat to the song's two creators, who haven't been fully forgotten, but who deserve some space of their own.

Patty and Mildred were two of the six children of Rev. William Wallace Hill and Martha Jane Smith, raised in Anchorage, Kentucky. Unusual for his day, he insisted his four daughters have a profession and encouraged their advanced education. "My father believed that every girl should grow up with a profession. This was a radical philosophy everywhere fifty or sixty years ago, particularly in the South," Patty Hill recalled in an 1925 interview.

Patty became one of the leading lights in the development of American early-childhood education, a continuation and expansion of work done in Germany by kindergarten inventor Friedrich Froebel. Her development of what were known reasonably as the Hill Floor Blocks led a student, Caroline Pratt, to develop "unit blocks," which recently celebrated their 100th anniversary and are widely used in childcare today.

Mildred was an ethnomusicologist who was an expert in African-American music, as well as a musician and composer. She's considered the likely author of a remarkable essay published under the name Johann Tonsor in 1893 that predicted that African-American music would essentially become the music of America. (The work is of its time, titled "Negro Music," and is patronizing but admiring.)

When our American musical Messiah sees fit to be born he will then find ready to his hand a mass of lyrical and dramatic themes with which to construct a distinctively American music.

In 1887, the 19-year-old Patty joined the Louisville Training School for Kindergartners, a new enterprise in Kentucky that aimed to establish demonstration kindergartens and spread the practice of pre-school education for the poor. "The special desire was to reach little children who attended [an industrial school attached to a mission] although too young to sew," according to a 1907–1908 issue of The Kindergarten-Primary Magazine. Older children were taught the sewing and carpet-making trade.

Patty Hill graduated in 1889 and became principal of one of the kindergartens, and then in 1893, the head of the entire Louisville Free Kindergarten Association. In a measure of how progressive Hill's organization was, in addition to serving what would otherwise have been child laborers, in 1899 it began training "colored" teachers, who would teach black children. Only a handful of such kindergartens existed at that time.

As part of her work at the school, Patty enlisted her sister Mildred—who wasn't otherwise associated with the school—to compose songs that could be used to guide children through different tasks and phases of the days. Any parent is familiar with such songs today from daycare, and the Hills are a good part of their American origin. (Patty and her sister Mary, who was a teacher at the school, also worked together to develop "Typical Lessons for Mothers and Kindergartners," serialized in The Kindergarten for Teachers and Parents, such as "Rain—Part II" in an 1890 issue.)

Starting in 1889, Mildred and Patty essentially workshopped songs with kids. Mildred wrote the music and Patty the lyrics. (Some researchers maintain Mildred adapted an African spiritual for the music, but there's no trace of the syncopation or the unique scale.) They experimented with finding songs that children could memorize and sing easily at this young age; Mary also helped out. Patty said in a deposition in 1934:

[A draft of the song] would be written and I would take it into the school the next morning and test it with the little children. If the register was beyond the children we went back home at night and altered it and I would go back the next morning and try it again and again until we secured a song that even the youngest children could learn with perfect ease.

"Good Morning to All" was one of their first efforts, and it appeared as part of Song Stories for the Kindergarten published in 1893. In the deposition noted above, Patty said that they used many variants to the lyrics, including "Happy Birthday To You," but never wrote these out or published these. Patty was savvy about copyrights: she and her sisters told trainees to never write down the music or lyrics to the songs before the 1893 book appeared.

In 2015, unit blocks remain in wide use and "Happy Birthday To All" is a tune that perhaps billions of people know. Patty, who died in 1946, helped create and foster a change in thinking about teaching young children that benefitted hundreds of millions worldwide.

The Hill sisters had an impact. But the fact that an 1893 melody coupled with words sung but not put into print has remained in copyright without an effective challenge may finally be on the verge of changing.

A smoking gun in ostensibly overlooked files

When I was a young man studying graphic design at college, one of my professors, Alvin Eisenman, then the dean of the American approach to design, would mix art and practice with anecdotes about his career. One story stuck with me: Never sign off on a client's proof, he told us. Those who have seen Elf know what that means. Before a book or other item is printed, a pre-production version is created—a "proof"—that shows any flaws or problems.

When I had an offset printed book last year, I received a laser-printed copy produced by the same rendered output that would be used to create printing plates for the book. I signed each page and express shipped the bundle back. In Alvin's youth, it would have almost certainly been a proof pulled from a letterpress or similar plate using a "proofing press." Graphic designers typically examine these proofs, but it's also typical to put the onus on the client (or one's boss) to sign the sheets—whoever signs has responsibility, and the printer bears no expense for errors found that aren't marked.

Alvin told us he had once signed off on a book in the 1940s, and it was printed, and only then was it discovered that the copyright notice had been left off. Since March 1, 1989, any original work of creative expression in America receives the benefit of copyright protection as part of the act of creation. But before then, there's a long and complicated history as to what was needed. Until 1977 (and with some exceptions until 1989), "If the work did not include the word 'Copyright' or a © (a 'c' in a circle) and the name of the copyright owner, the work would enter the public domain," according to the Stanford University Libraries Copyright & Fair Use guide.

As a result, Alvin and a colleague spent a memorable number of hours with rubber stamps and a "boxcar full of books," ensuring that each received a manually applied notice before they were shipped to booksellers. This was a cautionary tale, and one that might play into the current state of the "Happy Birthday" lawsuit.

I won't recapitulate all the details, as they were discussed at length in 2013 across the media and again recently. The lawsuit is quite comprehensible for laypeople, and describes dozens of ways in which the copyright should be considered either invalidly claimed or lapsed besides the newly discovered work.

The brief recap is that although the music and lyrics to "Good Morning" have a clear copyrightable moment in 1893, the same music coupled with the "Happy Birthday" words does not. The lawsuit notes the appearance in print in the early 1900s in various sources of alternate words, but without being authorized specifically by the Hills—who ostensibly retained copyright to "Good Morning," not the Song Stories publisher—that doesn't necessarily diminish their claim.

In 1934, Jessica Hill sued over the performance of "Happy Birthday" as part of a 1933 Irving Berlin stage musical, but without referencing the lyrics—only earlier copyrights to "Good Morning." (Jessica inherited part of the rights from Mildred, who died in 1916.) In 1934 and 1935, Jessica sold rights to certain piano arrangements of "Good Morning" to the publisher of Song Stories, the Clayton F. Summy Company. Summy in turn filed a series of "republished musical composition" copyright registrations for "Happy Birthday," although only the last of which included the lyrics, and the lyrics weren't cited as part of the revisions that would justify a new registration.

The Warner/Chappell defense of the copyright that remains is that somehow, the 1893 music combined with lyrics that were already in wide use and published extensively, once put together in 1935 represent a new work. That idea may be indefensible enough, but there are many other flaws in how the song traveled from 1893 to 1935. (The original 1893 work and a revised 1896 version should have remained under copyright until 1921 and 1924; the lawsuit says a proper renewal wasn't filed. Even if it were, the last possible date of protection would have been 1924 plus 28 years: 1952.)

Warner/Chappell, part of Warner Music Group, has owned the rights (if any exist) since acquiring the previous owner in 1985. It has reaped on the order of $2 million per year since, and if it were to maintain that 1935 registration date, its ownership wouldn't expire until 2030—137 years after the first publication of the song's melody.

There's much, much more in the lawsuit, but the last-minute discovery may allow all of the other arguments to be ignored. Late in the process Warner/Chappell produced new documents from a variety of sources after receiving some new material from other parties and re-evaluating what it had already turned over. One of the pages was from the aforementioned The Everyday Song Book's 1927 edition.

Nelson's lawyers didn't immediately identify this as an issue because of a conveniently blurred bit of text where the copyright notice should have been. Warner/Chappell sputters about this in a recent filing: "And, to be clear, we did not notice the blurred text on the sheet music printed." Hey, nobody's accusing you!

The attorneys found a university library with a 1922 edition of the book—the same edition I now have a surprisingly crisp copy of sitting beside me—and the credit line was readable. Instead of including as it did on other copyrighted songs throughout the book a notice like, "Copyright, 1899, by A. Flanagan, Publisher," it says merely, "Special permission through courtesy of The Clayton F. Summy Co." It contains both the "Good Morning To All" and "Happy Birthday To You" lyrics.

Mark Rifkin of Wolf Haldenstein Adler Freeman & Herz, one of Nelson's lawyers, says, "The publication in 1922 without a copyright notice forfeits the copyright; it's just that simple."

Even if it had had a copyright notice, because it was published in 1922, the work would fall before the 1923 cutoff point at which a variety of absurd revisions and extensions were added to copyright duration. Works published in the U.S. before 1923 are all in the public domain; works published in 1923, if they had a proper notice and were renewed after an initial 28-year term, don't expire until 2019.

Warner/Chappell's filing says that Summy lacked permission in 1922 to grant such copyright, only obtaining it until 1935. However, Rifkin tells me that this is "not the only instance we found where the song was reprinted with permission from Summy"; they found many instances from 1901 through 1924.

If Summy lacked the right, even if it had granted it to The Cable Company, then the song's appearance in the book wouldn't harm the Hills' ownership. And yet lacking the right, it's difficult to imagine this and other books were distributed without complaint, as Patty Hill was likely to see them or be told of them as they were used in her field. And she and Jessica were ready to sue the moment the song was performed in a musical.

It all seems rather tendentious when you read the current lawsuit and source documents, including a lengthy deposition in the 1935 suit. The Hills regularly sang "Happy Birthday" to Mildred's music, the lyrics were widely reproduced in print, and Sammy had and exercised various rights on behalf of the Hills at various times.

The entire case rests on the notion that Patty and Mildred never allowed the "Happy Birthday" lyrics to be combined with Mildred's music in any published form until 1935, and that those lyrics were original to them.

The song may have feet, but the game's up

"Happy Birthday" is fortunately an outlier in the copyright world. There isn't another popular song like it with as long and murky a history, nor any other work. The closest situation are the persistent efforts by a group called the Conan Doyle Estate to extract licensing fees for use of the Sherlock Holmes characters in new fiction. (The estate represents Conan Doyles who didn't descend from Arthur directly—his children were without issue—and who repurchased the rights from a charity to which his last child donated them.)

All but 10 later Holmes stories were published in America before 1923, but the estate aggressively pursued fees for any representation of Holmes or other characters under the notion that even if specific facts or character traits exhibited in the final 10 works aren't present, Holmes as a literary figure depends on the full corpus. (The Holmes' stories are in the public domain in the UK and many other countries under a different copyright regime that counted 50 years from Conan Doyle's death.)

The "estate" lost at trial, lost in appeal (with a wonderful opinion by Judge Richard Posner), and the Supreme Court opted to not hear further arguments. And yet it persists.

The final determination about when "Happy Birthday" lost its copyright protection will be made by the judge in the case, who, after some back and forth filings and possibly an in-court hearing in the next week, will probably issue his opinion between the end of August and the end of September, says Rifkin.

It would be nice to close the book on "Happy Birthday," but it doesn't close the book on copyright absurdity. An abundance of material from 1923 is poised to enter the public domain in 2019 unless a further taking of the public interest occurs, as the Sonny Bono Copyright Term Extension Act did in 1998, adding an unnecessary 20 years to the existing 50 years' protection past an authors' death.

Rather than sing "Happy Birthday" on January 1, 2019, we should sing another variation of the song: "Good-bye to you."

Sources

Google Books and university libraries are wonderful sources of contemporary information on this topic, because so much material related to education was published in the time periods affected and nearly all of the pre-1923 material (and some beyond) that's been scanned is freely available for viewing and download. Many are linked in the article above.

Robert Brauneis wrote a magisterial account of the Hill family and the song's history, as well as tracing the roots and winding path of its copyright in "Copyright and the World's Most Popular Song" (October 2010). I relied on some of his primary research (particularly for the 1925 quotation from an unpublished interview), although much of it can also be confirmed through contemporary accounts in journals, newspapers, and books. Some of his work has since been further elaborated on in the "Happy Birthday" lawsuit filing.