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There is a YouTube video of a song called "Hapi Berth Dey", which the user says is to the tune "Good Morning to You", which is in the public domain.

The video never explicitly mentions "Happy Birthday", and says that this song is "about an Egyptian river goddess finding a place to sleep on top of two sheep and a deer named Harrison, who also happens to be governor of Algiers before the French conquest in 1830".

Nonetheless, it is phonetically identical to Happy Birthday:

Hapi berth dey two ewe,
Hapi berth dey two ewe,
Hapi berth dey deer Harrison,
Hapi berth dey two ewe.

The words and the creator's stated intention of what the song is about do not resemble "Happy Birthday", but the lyrics (all of which are real words) are phonetically identical. In other words, they look different on paper, but when sung are the same.

Assuming for the sake of argument that "Happy Birthday" was irrefutably protected under copyright law (just the lyrics, since the tune "Good Morning to You" is in the public domain), would "Hapi Berth Dey" or a similar phonetically similar song be in violation of copyright?

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There are several things that could potentially be protected by copyright in a musical recording:

  • the tune
  • the lyrics
  • the particular recording

If you substantially take any of those as part of another work, you are infringing if the original was protected by copyright.

For any particular work, not all of these are necessarily protected. Somebody may have put original words to an old old folk tune. In that case, the tune is not protected, but the new words are, and so is the new recording of that work.

  • What does it mean to "substantially take" though. That's the crux of the issue. If the lyrics are different on paper, but sound the same when sung, has it been "substantially taken"? – Thunderforge Feb 11 '16 at 20:00
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    Did the creator of the second work have access to the original and copy from it? If not, then there is automatically no infringement. If the creator had access to the original and copied from it, then the test is whether the second work is "substantially similar" to the first. That is something that the fact-finder decides (the judge or jury). My best guess is that they would find the second work in your example to be substantially similar to the original. – user3851 Feb 11 '16 at 20:04
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It would seem that your song is a derived work. You took the original work and found words that sound the same. If the original work had used different words, your work would have ended up differently. So you have a derived work. Same as making a translation; if the original was different, then the translation would be different, so the translation is a derived work.

I was asked "How is this not straight up infringement". But it is. Not only copying is an exclusive right of the copyright holder, but also the creation of derivative works.

  • I'm pretty sure this example would be a straight up infringement. How did you avoid finding substantial similarity? – user3851 Feb 12 '16 at 18:15

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