happy birthdayHappy wha, wha, what? Lawsuit? That song that’s crooned daily around the world to commemorate how we’ve gotten a year older is copyrighted — or is it in the public domain? Jennifer Nelson, a New York documentary filmmaker, has sued Warner/Chappell in a federal court in Manhattan (thanks to Billboard for the online post of the suit) challenging the music publisher over its claims to the song Happy Birthday, which, the New York Times reports, she says long ago entered  the public domain.

Nelson, who is producing Happy Birthday, a documentary about the song’s history and future, signed a license with Warner/Chappell, paying $1,500 to include the song in a scene — and to avoid paying a $150,000 fine. She now says she never knew the tune belonged to anyone and points to evidence that it evolved from Good Morning to All, penned by sisters Mildred J. Hill and Patty Smith Hill before the turn of the 20th century.

Though there’s historical dispute as to the song’s exact origins, they apparently set the words of Happy Birthday to its music.  The  sisters sold their song to Clayton Summy in 1893 for ten percent of the retail sales of sheet music, which Nelson claims dates its copyright expiration in 1921.  In 1988, however, Warner/Chappell paid $25 million to acquire Birchtree Ltd., a company owned by Summy and whose musical catalog included Happy Birthday.

Professor Robert Brauneis of George Washington University Law School has published a 68-page scholarly article, “Copyright and the World’s Most Popular Song,” that supports Nelson’s argument the tune has entered the public domain. He examines the song’s history and evolution, concluding Happy Birthday is unlikely to be under copyright still, a protection he thinks expired in 1963.

Mark C. Rifkin, Nelson’s attorney, cites an estimate that Warner/Chapell has collected $2 million in licensing fees for the birthday tune and is seeking class-action status to get the publishing company to return all the fees it has collected in the past four years. Nelson argues that, if Warner/Chappell owns any copyright, it’s on a very limited piano arrangement published in 1935, not on the song itself.

As for Happy Birthday, it’s estimated to be the world’s “richest” tune in producing royalties and the Guinness folks put it in their book as the world’s most recognized. For those keeping track, by the way, Happy Birthday appears in the title of 201 movies, including good wishes to Wanda June, Elton, Peter Pan, Oscar Wilde and Shakespeare, and, of course, a film that was renamed from its original Sun yat fai lok, according to a quick scan in the IMDb database. Scan via Google for YouTube videos, and among the 446,000,000 results produced in 0.25 seconds is this 56-million-view-ditty for those happy Gemini among us who just may need the Monday cheer: