You can have your cake, but not sing “Happy Birthday” without violating a copyright — and a new suit says it’s time to change that.
A film company, frustrated at having to pay $1,500 to include a performance of “Happy Birthday” in a documentary about how it’s the best-known ditty in the English language, filed a $5 million-plus suit yesterday to put the timeless tune into the public domain.
The class-action complaint charges that Warner Music “boldly, but wrongfully and unlawfully, insists that it owns the copyright” to the song, which is based on a melody composed by sisters Mildred and Patty Hill and published in 1893 as “Good Morning to All.”
“Irrefutable documentary evidence, some dating to 1893, shows that the copyright to ‘Happy Birthday to You,’ if there ever was a valid copyright to any part of the song, expired no later than 1921,” according to the Manhattan federal-court filing.
The suit was filed by Good Morning to You Productions Corp.
The firm is developing a documentary — tentatively titled “Happy Birthday” — that’s set to include the singing of the song, which has been identified as the most popular of the 20th century and the most recognized in the English language.
The producers say Warner threatened them with a statutory $150,000 penalty for violating the federal Copyright Act if they didn’t sign a “synchronization license” and pay a $1,500 fee.
Warner collects about $2 million a year by licensing public performances of “Happy Birthday,” court papers say.
A Warner spokesman didn’t return requests for comment.