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Good Morning to All [a.k.a. the birthday melody] included in:
Song Stories for the Kindergarten, pub. 1893
Song Stories for the Kindergarten, revised ed., pub. 1896
[and apparently other pre-1923 editions]
Words: Patty Hill (-1946) Music: Mildred Hill (-1916)

Good morning to you,
Good morning to you,
Good morning, dear children,
Good morning to all.

The song Good Morning to All - from which Happy Birthday was allegedly derived - is free to use (words and music) by U. S. federal statute. (Published before 1923, and furthermore published before 1909) Take a look at Lolly Gasaway's PD chart, or Cornell University's expanded chart. That version of the birthday melody may suffice for some people - instrumentalists in particular. Also note that titles cannot be protected by copyright, and no unique or proper names are involved. Naming an instrumental CD track Good Morning to All a.k.a. Happy Birthday to You should be legal. (The law of other countries might affect the song's status outside the U. S.)

Allegedly, after the publication of Good Morning to All in the Hill's songbook Song Stories for the Kindergarten, Robert Coleman, and others, published the "birthday" lyrics with the Good Morning to All melody. In the 1930's, the "Happy Birthday" lyrics combined with the Hill's published melody showed up on stage and in singing telegrams. The Hill family allegedly won a 1934 lawsuit for infringement. In 1935 the Hill family registered the "Happy Birthday" copyright mentioned endlessly on the Web. (Which does not affect today's public domain status of Good Morning to All.) Two sources for Good Morning to All sheet music are PD Info (a small studio, that also sells sheet music reprints) and NetStoreUSA which offers Good Morning to All as part of a songbook. In addition, Google or Altavista might list other sources, or local music dealers might be able to order a copy. Mainely A Cappella currently boasts an mp3 sample of Good Morning to All as part of their On the Good Ship Lollipop CD. (There is also a very simple midi example on PD Info's "G" page.)

Is the melody to Good Morning to All the same as the Happy Birthday melody in a legal sense? Except for the splitting of the first note in the melody Good Morning to All to accommodate the two syllables in the word hap-py, musically Happy Birthday and Good Morning to All are identical. Precedence (regarding works derived from public domain material, and cases comparing two similar musical works) seems to suggest that the melody as used in "Happy Birthday" would not merit additional legal protection for one split note. (As separated from the lyrics themselves.) A contact I made via the Web, claimed that someone at Warner-Chappell acknowledged this much to him by phone. It would be the reader's own responsibility to verify that.

Strip away the public domain material from the Happy Birthday melody and what do you have? One note - actually half a note. (Mail in your copyright registration for the note f# for example, and see what you get back Does the split note transform the piece in some substantially creative way? Not in my view. The split note is a natural consequence of the lyric change, and that split note is not original in that there are many lyrics that would result in the same splits. It is my view that you cannot copyright the metric structure of a lyric (especially within a single measure) anymore than you can copyright a common chord progression. (Set both versions of the melody in tremelo and they look identical.) If in doubt, just use a dotted eighth note/sixteenth note pair, rather than two eighth notes. The Classical Archives has a midi of Happy Birthday, with variations, on their Encores page. Search for more midi examples using MusicRobot.

As asserted in this article, many people are unaware that the public domain status in the U. S. of the melody from Good Morning to All is not in question. Many of those who do know about the public domain status of Good Morning to All nevertheless believe that splitting the first note of the melody as was done for Happy Birthday would merit protection and attract Warner's attention. My limited understanding of the law suggests otherwise, and if my Web contact was correct, the copyright owner acknowledges the melody to Happy Birthday as public domain.

Whether or not changing the words "Good Morning" to "Happy Birthday" should be protected by copyright is a different matter. Although I could be uninformed, I do not know of any case brought by Warner in regard to Happy Birthday to You. They have however used cease and desist letters. An interesting case involving Warner, not related to Happy Birthday is Sanga Music v. EMI Blackwood Music. However, adding an original 8-line verse to a pre-existing song is more substantial than changing 2 words of a song! Of course, anyone is free to write their own lyrics to the music of Good Morning to All. Here is one example written by myself:

Mer-ry Christ-mas to You!
Mer-ry Christ-mas to You!
Mer-ry Christ-mas Dear Fri-ends,
Mer-ry Christ-mas to All.

Searching further, I found Katzmarek Publishing, a music publisher specializing in public domain music who claims that he and others have publications of "Happy Birthday" - with the lyrics, that are not covered by the 1935 copyright. (Of course there is no public comment by Warner on this.) Mr. Katzmarek told me via email that he believes Warner knows that their copyright on Happy Birthday to You could get ruled invalid in a court of law, and therefore the documentation he sells acts as sort of a legal shield.

He states on his Web page: "Happy Birthday Document (proving that it is public domain.) A 1935 copyright is invalid according to us, double your money back if we are wrong. (Many people have been ripped off by this dilemma)"

The Katzmarek reprints indicate that the words "Good Morning" were not substituted with the words "Happy Birthday" by the authors of Good Morning to All, they were substituted by other people. (Additional alternative substitutions were also published.) As I previously stated, except for the splitting of the first note in the melody Good Morning to All to accommodate the two syllables in the word hap-py, musically Happy Birthday and Good Morning to All are identical.

Starting in the 1920's, Robert Coleman published the "Happy Birthday" variant in compilations of his own. One such example that includes Happy Birthday to You is: The American Hymnal, Robert H. Coleman, 1933. A second example NOT by Coleman is: Children's Praise and Worship, Gospel Trumpet Company, 1928. [Children's Praise And Worship ed Andrew Byers, Bessie L Byrum & Anna E Koglin, registered 7Apr28, #A1068883, renewed 7Dec55, #R160405, Gospel Trumpet Co (PWH)] Several of Coleman's publications are archived at Bob Jones University and Southwestern Baptist. In addition, the Library of Congress might also have his publications archived.

It is Mr. Katzmarek's belief that because the "Happy Birthday" variant was published in these songbooks without copyright notice (and no author was stated) that it [any original authorship] became public domain upon publication under the 1909 copyright law. The 1909 Copyright Act required that a proper copyright notice be affixed to any published copies, and also required registration of the material. (Reportedly, some legal experts and producers agree, but Warner [the copyright holder] apparently disagrees.) It is curious that Warner doesn't challenge Katzmarek regarding his claims. A more recent case often cited is Bell v. Combined Registry Co., 536 F.2d 164 (7th Cir. 5/14/1976), cert. denied 429 U.S. 1001, 97 S.Ct. 530, 50 L.Ed.2d. 612 (December 6, 1976) although it deals with different issues than presented in the Happy Birthday situation.

An interesting earlier songbook noted by Mr. Katzmarek is: [the] Golden Book of Favorite Songs, Chicago, 1915. It includes the song Good Morning to All printed with the alternate title: "Happy Birthday to You" - however the "Happy Birthday" lyrics are not actually printed along the staff. (There could be even earlier publications of the lyrics in some library.)

In the 1930's, the "Happy Birthday" lyrics combined with the Hill's published melody showed up on stage and in singing telegrams. The Hill family allegedly won the 1934 lawsuit resulting in the 1935 copyright mentioned endlessly on the Web: "Happy Birthday to You was copyrighted in 1935 and renewed in 1963. The song was apparently written in 1893, but first copyrighted in 1935 after a lawsuit (reported in the New York Times of August 15, 1934, p.19 col. 6)" The federal statutes and one court's 1934 opinion seem to present a conflict in determining whether or not Happy Birthday to You is public domain:

The original music to Happy Birthday to You was published as Good Morning to All in 1893 and is securely public domain. The Hill sisters are credited with authoring Good Morning to All. However, according to The Book of World Famous Music by James Fuld, the 1858 song Happy Greetings to All is very similar to the Hill's song. Also in 1858, a similar tune Good Night to You All was published. Therefore, Good Morning to All might not have been a completely original song even in 1893 - which would be consistent with folk music. Other [unknown] people adapted the Happy Birthday lyrics to the song, a few publishers included it in their compilations (songbooks) and others started using it in plays and singing telegrams, while Good Morning to All was still under copyright protection. The song became popular. The Hill family sued for infringement and won. The next year, a copyright registration was filed for the Happy Birthday version of the song. That copyright is now owned by Warner-Chappell/Summy-Birchard. However, just because a copyright is registered doesn't mean it's valid. A copyright registration is only prima facia evidence. Just because someone threatens to sue doesn't mean they would win. One lower court's 1934 ruling couldn't be binding on the whole country, much less the world.

Under the U. S. law of 1909, the effective date of copyright is the date of first publication. The U. S. Copyright Office states: "The copyright in the work of authorship immediately becomes the property of the author who created the work. [The Hills did not create the Happy Birthday to You version.] Only the author or those deriving their rights through the author can rightfully claim copyright." There is proof that the song was published as Happy Birthday to You at least by 1915, which is prior to the public domain mark at 1923. Good Morning to All was not public domain in 1915, but it is now. Also, according to the 1909 Copyright Act, publication without notice forfeited the copyright for the publications in the 1920's. A copyright registration dated 20 years after publication is not valid under the 1909 Copyright Act. That would seem to indicate that the whole song is now in the public domain.

In summary and in answer to my three questions asked in this article, Good Morning to All is public domain and free to use, even for commercial use. The Happy Birthday to You melody is probably the same as the Good Morning to All melody in a legal sense. Happy Birthday to You (with the lyrics) might be public domain.