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|NOTE: Contrary to popular notions, the law does not prescribe numbers of words, percentages of total length, number of seconds (for film, video or sound recordings), etc., which may be copied under provision of Fair Use. Although major publishers have instituted mutual exchange permissions among themselves, these agreements are not binding nor transferable to firms and individuals who are not signatories to these agreements. Thus, determination of Fair Use entails more than the use of formulas.|
Does the new work have substantial similarities to the earlier work even though the new work has distinct, integral differences and was not designed as a parody, sequel, prequel or related work?
(It should be understood that each questions will render a subjective answer. Different answers from one person to another are to be expected. Although this points to a possible deficiency in the law, it does not make insubstantial appropriations of the work of others any less legally permissible.)
Where a permissible amount of the work of another creator is incorporated into a work of someone else, this is considered “fair use.”
(The issue of similarity is dealt with further in the next section.)
“Similarity” is much like “Fair Use” in that each entails a new work containing material which resembles that in an older work. “Similarity” differs from “Fair Use” in that “Fair Use” involves a creator of a new work who knows that his work takes material from the older work and who presumably believes that his takings are sufficiently moderate to be within permitted limits, whereas “Similarity” does not connote the later creator struggling to stay within limits and may involve a later creator who does not even know that he is copying from an older work.
As with “Fair Use,” this subject is dealt with only in overview, and with the warning that legal standards have not been strongly delineated. There is a subjective element to judgments, and so this web site can offer mere guidance.
A new work can be actionable if:
• the newer work has substantial similarities to the earlier work even though the newer work has distinct, integral differences and was not designed as a parody, sequel, prequel or related work;
• literary plots and characters are excessively similar;
• visual characters are excessively similar;
• there are substantial similarities of action details;
• visual appearance is excessively similar;
• there similarity of mannerism, style, characteristics thought of as unique to a well-known individual.
There have been court decisions which found guilt in the above areas. Similarity of plots and characters resulted in a guilty verdict in a three-court case involving Dashiell Hammett’s character Sam Spade; a number of similarity in consecutive actions resulted in guilt in Universal Pictures Co. v. Harold Lloyd Corp.; the same Universal Studios lost in a case concerning its movie 12 Monkeys designing a set to look like a particular painting; singer-actress Bette Midler sued when broadcast commercials used an indistinguishably-close imitation of her voice to endorse a product she had not contracted to advertise. (All of these cases are summarized on the Citations and Case Summaries page on similarity.)
The allied companies Warner Chappell Music, Summy-Birchard Music and AOL Time Warner have made known through newspaper articles and other public media that it holds copyright to the song “Happy Birthday to You” (1935) (also known as “Happy Birthday”). Warner collects substantial royalties every year from its use in movies and television shows; Warner contends that it is due payment for all public uses, including performances sung in restaurants. Some internet reports state that there is no longer a valid copyright to the song. One such summary is at Wikipedia: https://en.wikipedia.org/wiki/Happy_Birthday_song. More argument is provided at kuro5hin.org: https://www.kuro5hin.org/story/2003/7/5/112441/6280. The editor of this web site holds no opinion as to whether the argument in its entirety has merit.
Readers of the Wikipedia and kuro5hin articles (and others like them) will come across their argument that whatever difference there is between the tune of “Happy Birthday” and the earlier “Good Morning to All” (1893) is the mere “splitting of the first note in the melody ‘Good Morning to All’ to accomodate the two syllables in the word hap-py”. (Quoting from the kuro5hin article.) Such readers might recognize from this web site that this minor-difference aspect of music adaptation was addressed in a case summarized on this site: Norden v. Oliver Ditson Co. As the judge in that adapted-Russian-music case ruled, the adaptor’s changes were those “which any skilled musician might make”, and thus “not copyrightable as such.” (Go to the summary.) The fact of that judge making that argument in that verdict does not eliminate the possibility that other aspects of “Happy Birthday” entitle it to copyright where the Russian music was not eligible. Anyone interested in the copyright status of “Happy Birthday” has to allow every piece of reasoning to stand scrutiny. “Happy Birthday” has different lyrics than “Good Morning to All” and arguably differences in musical arrangement. However slight those lyrics, there has not been a ruling by a judge as to whether they are sufficiently original to be entitled to copyright. Nor has there been a ruling as to whether alleged publication of those lyrics prior to copyright affects the validity of the copyright. I do not offer an opinion on these last three matters (originality, alleged prior publication, musical arrangement). What I can offer is this: I have heard the song “Good Morning to All” and concur that it has essentially the same melody as “Happy Birthday.” One rendition of the song “Good Morning to All” can be heard in the 1931 Laurel & Hardy comedy Pardon Us, and one other (with what to my ears is the same melody) is in a 1935 cartoon entitled Mary’s Little Lamb, from which a sound clip is offered here (MP3 format, file-size 30K). The image appearing in this paragraph is from this same scene.
This page is sparse on illustrations —
Because this site has a slew of court-decision reports—
So: Now read passages from the law
and read what the courts decided.
Read Citations and Case Summaries on:
• Fair use
• Similarity (including subconsciously created; different markets)
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© 2007,2008 David P. Hayes