Hapi berth dey
What do you think? Me, I can’t imagine a judge would be moved by his argument regarding the lyrics. But I don’t know anything about intellectual property laws so maybe what looks like a cheeky nose thumbing is actually legit?
He gets the parody exemption, for one thing.
You are allowed to put your own lyrics to an existing tune, and since the music is public domain, then that keeps it from being infringing. And though the words he uses sound like the copyrighted words, they are different and being done to parody the song.
He should easily be able to defend the use.
Actually no. The short video might constitute a parody or some other form of fair use, but not the actual song. It’s not different from the “Happy Birthday” song at all.
Any copyright dispute is going to revolve around “substantial similarity”. Changing the “spelling” of spoken words won’t qualify. Singing the song in a setting and with lyrics that make fun of the original intent might qualify as parody. Simply saying “let’s make it sound like 3 words instead of 2; let’s sing it with an accent: let’s sing it with the lights out; let’s sing it while jumping a shark; It’s ‘bird-day’ not birthday!” or any of a milion other weirdo combinations does not subtract from the fact it would be recognizably someone singing “Happy Birthday”. And if the judge thinks it’s simply the same song, or close enough, it’s a copyright violation.
The song’s melody is not under copyright. He has every right to put his own words to it (that’s how the words to “Happy Birthday” were copyrighted, after all). ASCAP vs. Mad Magazine established this right.
He’s also parodying the song by changing the words. It’s a satirical jibe at the idea that the song is copyrighted. Note that he’s not wishing anyone a happy birthday.
He could be sued, but he’s on solid legal ground.
Not really.
The short video clip is probably a fair use parody.
The lyrics in written form are probably a fair use parody, if not an entirely new work.
But the song as performed is substantially similar to the protected work; indeed, it’s identical. Not only that, it was intended to be identical. It’s not a new work at all.
So you’ve got access and substantial similarity. That’s copying. It’s presumably unauthorized copying, so it’s infringing.
I would love it if he got sued and some internet billionaire took an interest and financially supported his case, taking it all the way to the Supreme Court and they ruled that this song is in the public domain. It could be the first step towards restoring sanity to copyright.
On what basis could the Supreme Court rule that the work is in the public domain? In cases like Eldred v. Ashcroft and the recent Golan v. Holder, the Supreme Court has pretty definitively drawn the line, saying that it’s entirely within Congress’s authority to determine by statute what is and isn’t in the public domain. Unless you can say that those claiming copyright interest in “Happy Birthday” are somehow misreading the Copyright Act, I don’t know what argument you can make that the work is in the public domain.
The arguments I can think of for the song in the OP don’t go to whether “Happy Birthday” is in the public domain, but rather to whether the use is infringing.
And what is the rational argument that “Happy Birthday” shouldn’t get the same level of protection of every similarly situated work? Because it’s popular? Shouldn’t the copyright owner be due more compensation for a work that turns out to be so popular?
Actually, I forgot about the argument that its copyright registration doesn’t reflect the actual date of its creation. If, indeed, it was composed earlier than the copyright holder claimed, then it’s likely that its copyright protection should have expired right now. But presuming that someone takes this issue to court, it’s pretty much just a question of fact that’s very, very unlikely to get to the Supreme Court.
“Happy Birthday” should have never been granted a copyright in the first place, as the melody was in the public domain.
Why not? The new lyrics were a new composition. Why shouldn’t it get protected the same as any other work?
Weird Al holds rights in the new lyrics for the songs he parodies, even though he doesn’t hold any rights in the tunes. He also gets rights in the recordings of the works.
Because the lyrics are so… contentless, maybe? Is there a limit to how simplistic a song lyric can be and still be copyrightable? Could someone copyright “La la la la la la la la la” or “I love you baby, yeah yeah yeah yeah yeah”?
It must meet the “low threshold” of a “modicum of creativity.” It must be original, meaning not copied. It must be fixed in a perceivable medium of expression. It must be a work of expression and can’t be a title, name, short phrase, or slogan.
If you know how law works, you know that it’s impossible to say exactly where the line is, but I’d say it’s somewhere above “la la la la la la la la la la la la” and somewhere below the lyrics of “Happy Birthday to You.” Although, I admit it’s conceivable that someone might someday use the repeated syllable “la” in a way that might be creative and original.