Most people are surprised to learn that the song “Happy Birthday” is still under copyright. Part of this is the time distortion that traditions go through. Many of the culturally accepted actions that it seems like everyone has been doing forever, actually took on their current form less than a lifetime ago, and the birthday party that traditionally includes a birthday cake with candles and “Happy Birthday” is an example of that.
But “Happy Birthday” really is an old song. The melody was widely known in the 19th century. The words at first were “good morning” rather than “happy birthday,” though the “happy birthday” lyrics might date from the 19th century also. If that’s the case, no one should be collecting royalties on it — a copyright doesn’t last forever, after all. And even if “happy birthday” does date from the beginning of the 20th century, there is a legitimate legal question as to whether that two-word change is enough of a change to make the song a new work, entitled to a new period of copyright. These are questions that, after all these years, a court will finally be taking a look at.