If the culture industries wonder why people have so little respect for copyright law these days, they need look no further than the Warner Music Group’s claimed copyright of the song “Happy Birthday.”  It’s a grotesque mockery of the avowed principles of copyright law and a scam on the public that has persisted for decades.  But with a revenue stream of $5,000 a day, or $2 million a year, Warner Music is not about to stop charging people for the right to perform “its” song.

Thanks to a courageous filmmaker, however, this travesty may soon come to an end.  Jennifer Nelson had been making a documentary about the “Happy Birthday” song when Warner said it would cost her $1,500 to use it in her film.  Nelson filed a lawsuit two years ago, a remarkable challenge in itself to the usual legal bullying by copyright owners. After all, who has the money or stomach to battle large corporations with well-paid lawyers or to lobby Members of Congress whose minds have already been made up by campaign contributions from music, film and publishing companies? Most TV shows simply forbid their hosts and performers from singing “Happy Birthday,” and various restaurants have come up with their own alternative songs, lest they incur licensing fees.

It now appears that Nelson’s legal team has uncovered hard evidence that the copyright to “Happy Birthday” has been invalid for years.  In a storage facility used by the University of Pittsburgh, lawyers found a 1922 songbook that contained the lyrics of “Happy Birthday” in a song entitled “Good Morning and Birthday Song.” This is significant because there was no copyright notice on the song in the book – a requirement for copyright protection under the law at the time – and anything published before 1923 has entered the public domain and is free for anyone to use.

Of course, Warner attorneys have their own highly technical legal responses. That’s what usually happens in such cases – the historical record and legal rules resemble a murky cave from which no one but expensive lawyers emerge. In this case, a judge will have to adjudicate whether there is enough evidence to decide the case now, or whether a trial will be needed. Still the discovery of the 1922 songbook is considered a “smoking gun” by many.

However the arcane legal arguments play out, it’s patently absurd that a song that derived from Negro folk culture and “written” by two sisters, Patty and Mildred Hill, in 1858, is still copyrighted in 2015 and won’t enter the public domain until 2030 — 172 years after its “original” creation. This lengthy copyright monopoly was the supposed “incentive” that the Hill sisters needed to “create” the song.

Thanks to Nelson and other artists who have joined her lawsuit, the expensive copyright joke known as “Happy Birthday” may soon be coming to an end.  But when will copyright law begin to take account of the actual generative power and “authorship” of social commons?  That, I fear, will require a much larger revolution in law.

Robert Brauneis’ 2010 law review article on the copyright of “Happy Birthday” is the most rigorous, full-scale treatment of this subject, available here.  A shorter but still extensive account by Flenn Fleishman appeared recently on Boing Boing.