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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.
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