Can Restaurants Sing the “Happy Birthday” Song?

People Singing Happy BirthdayRestaurants are absolutely allowed to sing the “Happy Birthday” song to patrons in their facilities—just be prepared to pay. That’s right: The song is copyrighted and public performances of the ever-so-popular tune require a royalty fee. So feel free to sing it your guests, but also be prepared to pay.

As the world’s most recognized song, according to the 1998 Guinness Book of World Records, the song is a staple at many homes, parties, etc. But once the song is performed and sung in public, a new set of rules come into play that involve copyright. Restaurants need to know the rules to avoid a costly legal challenge for copyright infringement. http://unhappybirthday.com/

What is a royalty and why is there a fee?

A royalty is a fee paid to the copyright holder for the right to use a song in a public performance, which would cover television, radio, and theater, and in restaurants, schools, and more. With a song as popular as “Happy Birthday,” the amount brought in each year in royalties is shocking—it brings in about $2 million a year! That’s not chump change for a song more than 80 years old!

In this song’s case, the copyright holder is an investment group that owns Warner Music, and currently receives royalty revenues for the song. Most song royalties are not even close to seven figures a year, but this timeless song is popular around the world.

Royalties are paid through a complex arrangement through a group known as Performance Rights Organization (PRO). This company was created to handle the administrative and enforcement action for music artists and copyright holders. They use individual licenses, blanket licenses, recurring fees, and temporary permits to remit the proper funds for use of songs to the copyright holders worldwide.

Copyrighted in 1935, the “Happy Birthday” song will earn Warner Group royalties until 2030  in the U.S., and slightly less in Europe due to a different interpretation of copyright law. The amount of the royalty fee depends on the use of the song.

For instance, it has been reported that use of the song in a film is a charge of $10,000. Television shows pay in the range of $700 per initial show, and less upon re-broadcast or reruns. Live performances of the song vary depending on the venue and type of performance.

Why do restaurants have to pay the fee if they aren’t performing it for money?

The fee is paid for public performance and, since the restaurants are not a private home, the fee is charged. This is regardless of the size of the restaurant, its location, or the number of patrons in the establishment at the time of the song being sung. The fee is also required to be paid whether or not the restaurant is receiving compensation of any kind.

Some restaurants argue that, since they receive no financial gain from singing the song, they should be exempt from paying the royalty fee. However, the copyright law makes no special provision whether or not compensation is taking place. There have even been large, full-scale concerts where a band member will inexplicably break into a rendition of “Happy Birthday” for a stage member or concert attendee and later the band has had to pay the copyright fee.

What can restaurants do to avoid the fee?

The only way to avoid paying the fee is to simply not sing it at the restaurant and wait until it is done in a private home. The key word for copyright enforcement is “public performance” and, since restaurants qualify as public places, that is why they are not exempted from a royalty payment.

To avoid singing the copyrighted version of “Happy Birthday,” many restaurant wait staff simply sing an alternate tune that the restaurant has created for itself. Since most eateries rarely sing the full song, just a few short bars of music will suffice.

That’s what Darden Group, parent company of Red Lobster and Olive Garden, did. All of their restaurant staff sings a short, completely copyright-free jingle along with festive clapping that lasts just a few bars of music. Guests are happy, company is happy, and no copyright infringement lawyers are involved.

By creating its own song, Darden Group also created a unique birthday experience for their restaurant clientele. It literally became part of their branding. Not only did they avoid a copyright fee, they created a more exclusive birthday experience.

The other suggestion for restaurants who want to satisfy guests but not run afoul of the law is to skip singing all together. That’s right, stop forcing staff to drop what they are doing and gather around a clearly embarrassed patron and belt away a tune.

Instead, simply put a birthday hat on the lucky guest, place the complimentary dessert in front of them with a lit candle, and say “Happy Birthday from all of us.” The guest still feels special, other customers can see there is a birthday going on, and no singing (off-key or otherwise) is necessary.

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