Stuttgart Higher Regional Court rules on a claimed copyright infringement of “Happy Birthday” by modified radio spot

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The OLG Stuttgart has ruled that the mere adoption of the words “Happy Birthday” as well as the use of an only slightly modified original melody does not constitute copyright infringement (OLG Stuttgart, judgment of 28 October 2020 and rectification order of 17 March 2021 – 4 U 656/19).

Background

The dispute began with the 50th anniversary of a cooperative association of electronics retailers. For this occasion, the association broadcasted a radio spot in which the modified words “Zum Geburtstag für dich” (“Happy birthday for you”) were sung to the tune of the well-known birthday song “Zum Geburtstag viel Glück” (“Happy birthday to you”).

The association was then issued with a warning letter by a publishing house. The publisher claimed that this was an infringement of the processing copyright to which he was entitled (§ 3 UrhG), since he was the legal successor to the author of the German song “Zum Geburtstag viel Glück”. This song is essentially based on the American version “Happy Birthday to you”. The original American version of the song has been in the public domain in Germany since 2016 and can, therefore, be used freely by anyone. However, exclusive rights are also granted to anyone who creatively modifies such a “free” work.

The Regional Court of Stuttgart (LG) rejected a copyright infringement (LG Stuttgart, judgement of 10.09.2019, ref. 17 O 384/19). Even if there was a copyright in the lyrics and melody, this was not infringed by the association.

The Stuttgart Higher Regional Court (OLG) has now confirmed this decision.

Decision of the OLG

The OLG agreed with the Regional Court and also found that a possible infringement with regard to the lyrics and the melody had to be assessed separately. Even if the two are directly connected and exploited together, they are separate works within the meaning of copyright law.

The key to determine whether a work is protected by copyright is to establish that it was a personal intellectual creation. It is particularly important that the individuality of the creator is expressed in the work. These principles also apply to adaptations of other works. Only in cases where the adaptation itself constitutes a personal intellectual creation can the adaptor be entitled to his or her own (adaptor’s) copyright.

Everyday language and literal translations are not eligible for protection

The OLG did suggest that the text of “Happy Birthday” might be sufficiently individual and thus enjoy copyright protection. However, according to the OLG, this was not the issue in the case at hand.

In the radio spot, only the words “Happy Birthday” were taken over from the original version. Admittedly, the adoption of mere parts of a work could also constitute an act of infringement. However, it was important that the part taken over had the character of a work in itself. Unprotected parts of the text, on the other hand, could be taken and published in an altered form.

Above all, mundane lines of text which are generally linguistic terms without any particular originality or level of creation, or very short parts of the lyrics of individual songs remain unprotected (cf. marg. no. 104). In the case of “Zum Geburtstag”, it was only a matter of two words which, as a brief sequence of words, originated in general language and did not convey any particular thought or emotional content. Copyright protection was also not justified by the fact that the words in question were repeated several times (see para. 106). The adoption of the two words, therefore, did not constitute an infringement of copyright.

The translation of the original English text “Happy Birthday to you” into German did not result in anything different. In principle, a translation could also enjoy copyright protection. The decisive factor here was whether the translator had used the creative leeway available to him in an imaginative way. This might be the case with the translation of “Happy Birthday to you” as “Happy Birthday”, as it was not a strictly literal translation (cf. para. 109). However, here again only the part of the text actually taken over was to be taken into account. A translation from “Birthday to you” to “Zum Geburtstag” was more of a routine translation without any leeway of its own. Thus, the court came to the conclusion that only an unprotectable part had been taken over, also with regard to the translation.

Overall character is crucial

The OLG also found no copyright infringement with regard to the melody. Although the so-called “small coin” is also protected in musical works, the standard for the level of creativity should not be set too low here either. This principle also applies to adaptations. In this context, such changes were not protected by copyright if they were merely in the realm of craftsmanship and left the original character of the piece unchanged. In the present case, the arranger had merely adapted the original melody to the German text version. However, the “overall impression of a simple, clear, popular melody which spreads a cheerful mood” was not affected by the changes made (para. 129). Thus, the edited melody did not enjoy copyright protection.

On the other hand, it is irrelevant for the assessment of copyright protection whether the piece is registered with GEMA. Such registration takes place without prior examination.

Conclusion

As the decision has once again shown, it is difficult to find clear abstract criteria for determining when a work is protected by copyright. Rather, a multitude of criteria and the actual circumstances of the individual case are decisive for the assessment. This makes it almost impossible for creators to judge whether they may freely use certain works or parts thereof without obtaining legal advice.

However, the ruling also makes it clear that the threshold of the required level of creativity – also and especially when it comes to the adaptation of other works – must not be set too low at the same time.

“Why Metadata Matters for the Future of Copyright” – Dr. Martin Schaefer in the journal European Intellectual Property Review

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Metadata is essential in the copyright industry of the 21st century to keep the engine of copyright running smoothly and powerfully for the benefit of creators, users and the copyright industry as a whole. But metadata is difficult to acquire and even difficult to keep up to date, as content rights are mostly multi-layered, fragmented, international and moreover volatile. 

BOEHMERT & BOEHMERT partner and lawyer Dr. Martin Schaefer deals with a solution approach for this challenge in his article “Why Metadata Matters for the Future of Copyright”, which appeared in the 08/2021 issue of the “European Intellectual Property Review” (E.I.P.R.). Together with co-author Prof. Dr. Norbert Gronau from the University of Potsdam, Dr. Schaefer develops the idea of a neutral tool for searching and improving metadata that could serve as a buffer to protect the interests of proprietary database owners and avoid the shortcomings of centralised databases. 

In light of various EU efforts, the authors conclude in their paper that it is time to take the concept of a “metadata search and enhancement tool” to a new level. And this is not only for the music industry, as the entire copyright sector could benefit from such approach. Large international public organisations – such as those under the roof of the EU – would be predestined for implementation.

Promotion in the EU, liability in Germany? – News on cross-border trademark infringements

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The worldwide availability of offers and ordering options is one of the great achievements of online commerce. However, the expansion of the territorial reach can also be accompanied by an expansion of liability for the infringement of intellectual property rights. The operator of an online store in another EU country has now had to learn this before the Frankfurt Higher Regional Court (judgment of March 11, 2021 – 6 U 273/19).

The store operator had – at a time when the United Kingdom had not yet left the EU – promoted a product in his Northern Irish online store under the MO trademark, which is protected in Germany for identical goods, whereby this trademark was not reproduced on the product itself or its packaging. The online store was exclusively available in English under an address with the top-level domain .co.uk and the currency was exclusively the British pound. However, the store operator advertised a “worldwide shipping” of the offered goods. A test purchaser of the owner of the MO trademark ordered the product advertised in the online store under the sign MO to Germany and the store operator delivered. Subsequently, the trademark owner and the store operator disputed whether the delivery to Germany of the product advertised in the Northern Irish online store under the sign MO constituted an infringement of the German trademark MO, if the sign MO was not used on the product itself or its packaging.

The Higher Regional Court of Frankfurt am Main overturned the decision of the first instance and found a trademark infringement. According to the judges, the mere fact that the product promoted on the Northern Irish website was delivered to Germany was sufficient to establish a sufficient “commercial effect” for an international jurisdiction of German courts and a trademark infringement in Germany. The fact that the disputed designation MO was not even reproduced on the product itself or its packaging did not seem to matter to the court.

The decision, which has become final and binding, could be the starting point for an expansion of the liability of operators of foreign online stores in Germany. Although scenarios of trademark infringements through cross-border acts of use on the Internet have been discussed in various decisions, case law has so far endeavored to set rather narrow limits here. In several decisions, the German Federal Court of Justice (BGH GRUR 2005, 431 – Hotel Maritime; GRUR 2012, 621 – Oscar) required that the infringing acts be clearly aimed at the German public or the German market, which could be expressed, among other things, in an offer in the German language, by providing German contact details or by accepting German currency. It remains to be seen to what extent the current decision of the Frankfurt Higher Regional Court is the start of a shift of paradigm. In any case, operators of online stores in other EU countries, as well as operators of German online stores that ship throughout the EU, should be aware that the EU internal market not only brings increased opportunities for sales, but also increased risks of trademark infringement, even if measures have been taken to reduce the risk in the goods offered, for example, by means of a neutral product presentation.

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