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).
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.
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.