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American Inventions - Game 14, Louisville

What you do at your crappy local chain restaurant could cost you big bucks.

Mark Metcalfe

When you think of people who've made a lot of money in the music business, you probably don't think of Patty and Mildred Hill.

Patty Hill was a progressive kindergarten teacher in Louisville, Kentucky in the 1890s. She came from a family that stressed education, and became an influential figure in education herself. She helped found the National Association for the Education of Young People, was a professor at Columbia University for 30 years, and wrote many books on how to best nurture kindergarten and first grade students.

Her ideas are still seen in schools today. Do you remember all the rules you had to follow in kindergarten? Or those check-able lists of things you had to teach your children to do and not do? These were first codified in Hill's Tentative Inventory of Habits, a list of 84 tasks a kindergartner should be able to do. Do you remember those huge blocks, almost as big as you were, that you could build little houses out of and play in the houses? Those are called Patty Hill Blocks.

One of Hill's progressive ideas was that children should start their day with a nice rousing song. To this end, Patty and sister Mildred (an academic whose research into African-American music would later influence Antonin Dvorak's New World Symphony) put together a little ditty called "Good Morning to All", which they sang to their students at the Louisville Experimental Kindergarten School. In 1893, they published a book called Song Stories for the Kindergarten, which included this tune.

What happened next to "Good Morning to All" is somewhat in dispute. The accepted story -- the one that won in court -- is that a Hill family celebration in the Kenwood Hill neighborhood of Louisville resulted in a new set of lyrics being composed for the tune. It was young Lisette Hast's birthday, you see, and somebody got the idea of re-purposing the song for that occasion.

And thus Lisette Hast became the first person ever to suffer through their friends' half-assed, off-key rendition of "Happy Birthday to You."

Or did she? The song had been published in various song books, as "Happy Birthday to You", as early as 1912. Similar melodies had appeared in song books as far back as the 1850s. But nobody tried to copyright it until 1933: the Summy Company, who had originally published Song Stories for the Kindergarten back in 1893.

With the approval of another Hill sister, Jessica Hill, Summy republished six versions of "Good Morning to All": five arrangements of Good Morning to All, and one with the Happy Birthday lyrics, all with copyright notices naming Patty and Mildred Hill as composer. In an incredible stroke of luck, the copyright office registered the "Happy Birthday" version first, meaning the first copyrighted version was the one with their lyrics, and not a folk melody that had been around for decades. This made Patty and Mildred Hill the first documented copyright holders of the most popular song ever sung in English. And they would successfully defend their ownership in court.

The first copyright lawsuit was against Broadway producer Sam Harris, who had used the song in the musical As Thousands Cheer. The composer of the musical -- a guy named Irving Berlin -- was shocked to learn anybody owned the song. In court, Patty Hill cited their Summy Company copyright of the song, and testified that "Good Morning to All" was sung with various lyrics, including "Happy Birthday to You", at the Louisville Experimental Kindergarten School four decades ago. They just, you know, improvised so many verses for it that they didn't bother putting them all in the 1893 song book. The case went nowhere, but the Hill sisters and Summy Publishing had successfully defended their ownership of the song, despite never really asserting that they wrote it.

In 1942, the Hill sisters established The Hill Foundation, Inc. to manage their interests in the song. It was becoming quite lucrative, with residual income from movies, public performances, and sheet music. They sued Summy Company over some unpaid royalties, and the Postal Telegraph-Cable Company for using their song in singing telegrams without properly compensating them. After that, people didn't sing "Happy Birthday to You" in anything commercial unless they were willing to fork over some dough.

This is still the case today. It's why you rarely see the song in movies or TV shows. It's why the obnoxiously peppy waiters at tacky chain restaurants sing a specially-commissioned song instead of good ol' Happy Birthday. "Happy Birthday to You" is copyrighted material, and its owner will vigorously defend it. And today that owner is Time Warner, who bought the rights to the song in 1989. For $25 million. ($47 million in today's money.) It continues to spin off millions of dollars a year in usage fees. Any time you hear Happy Birthday in a musical greeting card, ringtone, documentary, or anything else, Time Warner got paid.

Incredibly, "Happy Birthday to You" will not become public domain until the year 2030. Current American copyright law grants ownership 95 years from the date of first copyright, which was 1935. There are people fighting in court to get the song declared public domain, and an academic study that illustrates many flaws in the Hills' copyright claim. But nobody's beaten them in court yet.

And if you're freaked out, relax: United States law permits the use of copyrighted material, provided it is done "without any direct or indirect commercial advantage," or if it is done in a private gathering. So if you must sing Happy Birthday to a loved one, do it before you go to Applebee's. These guys don't play around. They once tried to collect licensing fees from the Girl Scouts.