Here's yet another reason why those of you who are always going around singing "bow wow wow, yippie yo, yippie yea," need to stop doing that. I'm talking to you, Dick Cheney.
The Sixth Circuit ruled recently in a copyright case involving George Clinton (right), funktastic leader of Parliament Funkadelic, who first used the words of that phrase (in that order) in the 1982 song "Atomic Dog." Bridgeport Music, which controls the rights to Clinton's work, sued over the use of the lyrics by Public Announcement in a 1998 song called "D.O.G. in Me." According to the report, that song "featured the Clinton lyrics as well as several uses of the word 'dog.'"
To be more specific, as the Sixth Circuit was in its opinion, Bridgeport claimed the song was infringing not only because of the "Bow Wow refrain" but also due to its "repetition of the word 'dog' in a low tone of voice at regular intervals and the sound of rhythmic panting." Is that sort of thing protectable? Good question.
First, a little background. We learn in the opinion that "Atomic Dog," described at trial as "an anthem of the funk era" and "one of the most famous songs of the whole repertoire of funk and R&B," was basically ad-libbed - there was no written composition at all. This seems to have been mostly because Clinton was high when he got to the studio:
Testimony at trial indicated that the song was composed spontaneously – [David] Spradley recorded the initial tracks in the studio and recalled that "when George arrived he had been partying pretty heavily so he was, you know, feeling pretty good," and was unsteady at the microphone. Spradley and Garry Shider "got on either side of him. We just kind of kept him in front of the microphone" while Clinton recorded the vocal tracks that same night.
The result of the collaboration between Clinton and the musicians holding him up is still "one of the most frequently sampled compositions of the Funk era," and the "Bow Wow refrain" is often licensed by itself. But in this case, it wasn't licensed at all. Universal Music Group, which owns the (likely much less lucrative) rights to the work of Public Announcement, argued that the allegedly infringing elements -- "the use of the word 'dog' in a low voice as 'musical punctuation,' the rhythmic panting, and the Bow Wow refrain" -- were not copyrightable, but the jury disagreed. (Those of you who are always wanting to get out of jury duty should be reminded that there are cases out there like this one.) It awarded $89,000 in damages for the unlicensed woofing.
On appeal, the main issues were whether the use of "dog" and the "rhythmic panting" were sufficiently original to be copyrightable, and whether the jury was properly instructed on "substantial similarity."
On the subject of originality, experts testified that these elements (that's "dog" and the "rhythmic panting") were not just the "mere abstract idea" of a dog or of the activity of panting. (I really had never thought of it as an "activity" before now, to tell you the truth.) In "Atomic Dog," the word "dog" was a "stand-alone melody of one word" used as "musical punctuation," and the sound of panting followed the rhythm of the song. It appears that in the whole of human history prior to 1982, no one had thought to do that.
As for similarity, the lower court instructed the jury on "fragmented literal similarity." This means (I think) that rather than having to compare the two works as a whole, the jury could consider and compare specific fragments of the works. With that instruction, it is easy to see how the use of the "Bow Wow refrain" was found infringing -- it was copied pretty much directly and that refrain is "the most well-known aspect of the song" -- as the Sixth Circuit put it, "in terms of iconology, [the refrain is] perhaps the functional equivalent of 'E.T., phone home.'" The court held that the instruction was okay and that it was reasonable for the jury to have found this fragment to have been unfairly copied.There was also a lengthy discussion of the "fair use" doctrine, which I will just note is the reason why my use of "bow wow wow yippie yo yippie yea" here is not infringing -- it is used only for purposes of "commentary," "satire," or whatever you want to call this nonsense. And, frankly, nobody is likely to confuse me with George Clinton, although I do sometimes need to have people hold me up in front of the keyboard while I work.