By Darren Shield

In many dining establishments, a group of enthused servers will regale a table with song to help a special diner celebrate his or her birth. I have enjoyed the many variations of the song for myself, friends and other restaurant patrons. And yet throughout all of my dining experiences I have almost never heard the classic “Happy Birthday” song sung by the staff. Being the copyright law wonk that I am, I have often wondered, “Do they choose to sing their own version, or are they prohibited under copyright law?”

“Happy Birthday To You” is one of the more famous copyrighted works in our culture. Some, such as George Washington University Law School Professor Robert Brauneis, have questioned the validity of the copyright in the song. His study and the archive of evidentiary documentation are impressive. Professor Brauneis cites many good reasons and facts behind an argument against the validity of the song’s copyright. But for the average restaurant looking to provide a little something extra for its patrons, challenging the validity of the copyright of the song is not within its annual operating budget.

Assuming that the copyright to Happy Birthday is valid, who owns this work, and why don’t restaurant servers just sing the iconic song?

Warner Music Group (WMG) acquired the rights to the song in 1988, and has aggressively enforced the rights to the song throughout media. If Happy Birthday is sung in a movie or on TV, or published in a songbook, WMG looks for its royalties. However, restaurateurs should not be worried about a letter from WMG’s legal department. Because of the administration of rights granted under copyright law, special performance rights organizations have been created to register and license out the use of music in venues such as restaurants.

Section 106 of the Copyright Act grants the holder of a copyright a number of exclusive rights to a work. The Section 106 right in question is the public performance right of a work: § 106(4) “in the case of literary, musical, dramatic, and choreographic works… [the right] to perform the copyrighted work publicly.” In addition, the copyright holder may grant a license to this right to another person or entity. So if a film maker wants to include “Happy Birthday To You” in a scene in a film, the producer must obtain a license. The performance of a song in a discrete play, film or television show is relatively simple to administer a license.

However with non-dramatic performances, such playing music in a restaurant (or indeed singing a song live) where there are likely millions of such restaurants and other venues in the country, licensing every song played in every location would be a Sisyphean task. Performance Rights Organizations (PROs) were created to handle the administration of this right: first ASCAP, and later BMI and SESAC. Music artists and copyright holders register their music with the PROs, who then grant blanket licenses for their libraries to venues, and remit the license fees back to the registered copyright holders. As such, restaurants that play music must have a license from one (and often from all) of the PROs.

Warner Music Group licenses its catalog through ASCAP, the oldest and largest of the PROs. As such, any restaurant with an ASCAP license should be allowed to have their staff sing “Happy Birthday To You.” (see ASCAP title search Work ID: 380008955).

Now that we know who has the rights to “Happy Birthday To You” and how to obtain a license, what reasons could a restaurant have for creating their own version? Perhaps the restaurant owner has not learned of his or her rights and obligations in playing recorded music, or maybe restaurants simply want to create a unique experience for their clients and thus create new version of a perfectly serviceable song. Branding is, after all, an important part of a restaurant’s overall business strategy.