8 November 2009

When does hip-hop sampling infringe copyright? The "Bow wow wow, yippie yo, yippie yea" case.

On 4 November 2009 the US Court of Appeals for the 6th circuit affirmed the US District Court for the Middle District of Tennessee’s decision that the unauthorized use of George Clintion’s “Bow wow wow, yippie yo, yippie yea”, being the rerfain in his “Atomic Dog“, by Public Announcement, an R&B and hip hop group, in their song “D.O.G. in Me”, constituted copyright infringement. The infringement was claimed by Bridgeport Music to which George Clintion has had assigned his rigts. Proceedings were then commenced against Universal Music Group that acquired A&M Records – the music label that had previously released the infringing “D.O.G. in Me”.

What makes this case remerkable, is the Court’s restated guidance on “sampling”.

Sampling Is Widely Used

by many rap or hi-hop artists when creating their songs. The authority thereby dealt with questions relating to both, substantial similarity and  a possible fair use defence.

 

Having personally found such guidance really usefull, I decided to make it an entry on my blog.

In opining as to whether the claimed substantially similarity was present, the Court decided to “identify which aspects of the artist’s work, if any, were protectible by copyright” and, second, to “determine whether the allegedly infringing work was substantially similar to the protectible elements of the artist’s work.”

Having done so, the Court dismissed the comparison between the two songs as a whole, but applied the “fragmented literal similarity” test by asking whether a smaller fragment of “Atomic Dog” has been copied literally, and not the overall theme or concept of the song. This view was backed by an expert testimony that described the copied elements of “Atomic Dog” as

Unique To The Song And The “Bow Wow” Refrain

in particular, as the most well-known aspect of the song.
Thus, the Court found that there was substantial similarity, as the copied elements were found to have such great qualitative importance to the song.

While examining

Whether a Fair Use Defence Might Be Applicable

the Court overthrew Universal’s claim that the copying certain elements from “Atomic Dog” in “D.O.G. in Me” was intended as an homage or tribute to George Clinton and, thus fair use. The court came to this result upon applying the statutory factors from 17 U.S.C. § 107: “D.O.G. in Me” was indeed transormative (first factor); however “Atomic Dog” was clearly within the core of copyright protection (second factor); moreover, the copying covered the most distinctive and recognizable elements of “Atomic Dog” (third factor), and finally, given the fact that “Atomic Dog” is one of the most frequently sampled compositions of the Funk era, Bridgeport could lose substantial licensing revenues if it were deprived of its right to license content such as that used by Universal (fourth factor).

In my personal view this decision is capable of building

An Opposite Pole To

Campbell v. Acuff-Rose Music and hence a milestone in legal practice.

Comments (2)

  1. 5 December 2009
  2. 8 December 2009

    Yes, but it was the label that started proceedings. I think they were not in the possession of the rights to “Atomic Dog” at the time Funkdoobiest issued his song to the public.

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