Sixth Circuit Ruling on 'Atomic Dog' Samples Protects Small Segments of Musical Compositions

Only a minimal amount of creativity is required for copyright protection. What that minimum may be has been a recurring issue in copyright litigation, with many battles fought over whether a segment of a song is protectable. In 2003, in the first federal appeals court ruling involving music sampling, the U.S. Court of Appeals for the Ninth Circuit decided that the Beastie Boys' unlicensed use of a sample of a three-note segment ' from flutist James Newton's composition “Choir” in the rap group's recording “Pass the Mic” ' was de minimis and thus not infringing. Newton v. Diamond , 349 F.3d 591 (9th Cir. 2003). But in 2004, the Sixth Circuit decided for a copyright plaintiff, ruling that the unlicensed sampling of any segment of a sound recording, even if digitally altered, (in that case three quick, successive notes from a George Clinton sound recording) automatically infringed. Bridgeport Music Inc. v. Dimension Films , 383 F.3d 390 (6th Cir. 2004).

'Fragmented Literal Similarity' Test Embraced

The Sixth Circuit has now issued a pro-copyright-plaintiff decision regarding the sampling of small segments of musical compositions. And with this ruling, the appeals court for the first time explicitly embraces the “fragmented literal similarity” test for determining whether there is substantial similarity between two works. What the Sixth Circuit found is that unauthorized sampling ' in Public Announcement's hip-hop recording “D.O.G. in Me” ' of just one note from the musical composition “Atomic Dog,” the funk classic co-written and recorded by George Clinton, constituted copyright infringement. The appeals court further found that Public Announcement's unlicensed samples of a catchphrase and of panting sounds from “Atomic Dog” also were infringing. Bridgeport Music Inc. v. UMG Recordings Inc., 07-5596.

The “Atomic Dog” song and sound recording were completed on the spot during a 1982 studio session. Clinton and his two co-writers subsequently transferred the copyright in the song to Bridgeport Music.

For its 1998 “D.O.G. in Me” release, Public Announcement sampled from “Atomic Dog” the vocal phrase “Bow wow wow, yippie yo, yippie yea,” a segment of rhythmic vocal pantings and a segment of the word “dog.” Bridgeport Music claimed that after learning of the samples, it sent mechanical licenses for UMG to sign, but received neither those back nor an appropriate answer from the production company or music publisher for Public Announcement. In the U.S. District Court for the Middle District of Tennessee, a jury concluded that “Atomic Dog” and “D.O.G. in Me” were substantially similar and awarded Bridgeport $88,980 in statutory damages for UMG's willful infringement.

In the Beastie Boys case, the rappers had sampled a six-second segment of “Choir” made up of a C/D-flat/C sequence behind which Newton played a simultaneous C note on flute. In reaching its de minimis decision for the defendants, the Ninth Circuit decided that the background C was part of Newton's sound recording of “Choir”; the Beastie Boys had obtained a sampling license for this from the record label for which Newton recorded. The Ninth Circuit went on to rule that the remaining three-note segment wasn't qualitatively or quantitatively important to Newton's song.

In the “Atomic Dog” case, the Sixth Circuit disagreed with UMG that the word “dog” and the separate rhythmic panting segment were part of the sound recording (which is owned by non-party Capitol Records). The Sixth Circuit noted instead, “Uncontroverted testimony at trial established that the song was composed and recorded in the studio simultaneously and, therefore, that the composition was embedded [i.e., as its own copyright] in the sound recording.”

For infringement determinations, the Sixth Circuit typically requires its courts to filter out unprotectible elements from the plaintiff's work, then decide whether the defendant's work and the plaintiff's protectable copyright elements are substantially similar as a whole. But the Sixth Circuit noted in the “Atomic Dog” dispute, “as have several of our sister circuits, we have also noted that it is appropriate to modify this inquiry for situations in which a smaller fragment of a work has been copied literally, but not the overall theme or concept ' an approach referred to in the literature as 'fragmented literal similarity.' ' Thus, the copying of a relatively small but qualitatively important or crucial element can be an appropriate basis upon which to find substantial similarity.”

The appeals court confirmed that the “standard for originality” for copyrightability “is a low one,” then noted that “expert testimony presented at trial was sufficient to permit the jury to conclude that Clinton's use of the three disputed elements in 'Atomic Dog' met this minimal standard. Additionally, there was expert testimony that these elements were not just the 'mere abstract idea' of a dog or of the activity of panting because, in Clinton's composition, the word 'dog' constituted a 'stand-alone melody of one word' used as musical punctuation at intervals on the tonic note [i.e., a key note] of the song and because the sound of panting followed the rhythm of the song. Testimony by David Spradley, a co-creator of 'Atomic Dog,' also demonstrated that Clinton exercised some degree of creative control over the panting by instructing the performers to create a certain rhythm.”

Further, Bridgeport argued in its appellate Final Brief that the “'Bow Wow' phrase and its melody is original to 'Atomic Dog.'” The appeals court acknowledged trial testimony that described “the Bow Wow refrain, in particular, as the most well-known aspect of the song ' in terms of iconology, perhaps the functional equivalent of 'E.T., phone home.'”

(The Sixth Circuit also ruled that the district court properly instructed the jury on “willfulness” and that UMG had failed to show that “D.O.G. in Me” was a fair use “homage” to George Clinton.)

Single Note Protection

Protection for the word “dog” is certainly the most minimalist aspect of the Sixth Circuit's opinion. But how useful is this for copyright holders? UMG argued in its appellate reply brief: “Even under Bridgeport's extreme view of 'fragmented literal similarity,' ' [t]he word 'dog' was in a different key in 'D.O.G. In Me' ' a fact that forced Bridgeport to electronically alter its pitch in the recordings it played during opening statement to make it sound more like the 'dog' in 'Atomic Dog.'” Bridgeport emphasized in its final brief: “One-word, one-note elements are quite unusual.” The music publisher also noted: “Defense musicologist Anthony Ricigliano agreed with [the plaintiff's musicologist] that he knew of no other musical composition using a single note, self-contained melodic phrase as punctuation.”

From the perspective of potential Bridgeport Music plaintiffs, then, a single note should be dressed with prominence ' in the Sixth Circuit case through punctuating a tonic in the musical composition ' or the bare note would likely fall below the minimal level needed for copyright protection.