'Happy Birthday' is the most recognised song in the English language
'Happy Birthday' is the most recognised song in the English language

Is our favourite birthday song about to have a happy ending?

IS THE ''Happy Birthday'' cash cow finally over?

Lawyers have discovered a ''smoking gun'' document which ''conclusively proves'' that the world's most popular song is not covered by copyright.

Hollywood executives may be ordering cake and candles to celebrate, after evidence in a long-running court case threatened to strip music publisher Warner Chappell of the estimated $2m (£1.3) it earns annually from the use of ''Happy Birthday'' in films and television shows.

The most recognised song in the English language according to Guinness World Records is also the least heard in its entirety in popular culture, thanks to the costs involved in using it. When sung on screen, the participants often break off into ''For he's a jolly good fellow'', which is in the public domain, before its conclusion - lest Warner Chappell comes looking for its slice.

Now a blurry picture from an 88-year-old songbook, found in Warner Chappell's files, has delivered the ''proverbial smoking gun'' according to lawyers for film-makers working on a documentary about the history of the song, who are suing its publishers for the right to use it without paying a licence fee.

Director Jennifer Nelson objected to Warner's demand that she pay $1,500 to use the song, insisting that it was in the public domain.

A batch of documents, mistakenly withheld from lawyers for Ms Nelson, included a digital copy of the 15th edition of The Everyday Song Book, published in 1927, which contains the ''Happy Birthday'' lyrics.

Her team then tracked down an earlier edition published in 1922, found in the archives of the University of Pittsburgh, which included a version of ''Happy Birthday'', published without a copyright notice, unlike other songs in the book. The melody for ''Happy Birthday'' is attributed to American sisters Patty and Mildred J Hill, who introduced the song with the original lyrics ''Good morning to all'' to Patty's Kentucky kindergarten class in 1893.

The Hill sisters assigned the rights to a publishing company owned by Clayton Summy and the song in the 1922 book is printed with a notice that read ''Special permission through courtesy of The Clayton F. Summy Co'' rather than a copyright claim.

The documents and the book ''prove conclusively that the song is in the public domain'', predating the first published 1935 copyright of its piano melody, Ms Nelson's lawyers claim.

The 1935 copyright would only cover different arrangements of ''Happy Birthday'', not the underlying rights to the song itself, argued the lawyers. A further hearing in the California court case is scheduled for today.
There are several interested parties supporting Ms Nelson's suit. A 2003 film The Corporation claimed that Warner charged up to $10,000 for the song to be used. The director of the acclaimed low-budget documentary Hoop Dream paid $5,000 to use the song because a birthday scene was integral to his film.