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IP/Entertainment Case Law Updates

Bridgeport Music, Inc., et al. v. UMG Recordings, Inc., et al.

Sixth Circuit affirms a jury verdict which found defendants willfully infringed plaintiff’s musical composition copyright; court rejects defendants’ argument that district court erred in jury instructions about substantial similarity, fair use and willful infringement.

Plaintiff Bridgeport Music owns the composition copyright in the song Atomic Dog written by George Clinton, David Spradley, and Garry Shider, and performed by Parliament Funkadelic. Defendants’ predecessor in interest A&M Records released a record by Public Announcement that included the song D.O.G. in Me. Bridgeport claimed that D.O.G. in Me infringed its copyright in Atomic Dog based on the use of the phrase “Bow wow wow, yippie yo, yippie yea” and repetition of the word “dog” and the sound of panting in D.O.G. in Me. A jury found defendants willfully infringed Bridgeport’s rights in Atomic Dog and awarded statutory damages of $88,980. Defendants appealed the verdict, claiming that the jury was improperly instructed regarding substantial similarity, fair use and the meaning of willful infringement, and that they were entitled to judgment as a matter of law on the issue of substantial similarity.

The Sixth Circuit affirmed the jury verdict. On appeal, the court reviewed jury instructions as a whole “to determine whether they adequately inform the jury of the relevant considerations and provide a basis in law for aiding the jury in reaching its decision.”

Defendants asserted that the jury should not have been able to consider either the word “dog” used as musical punctuation or the rhythmic panting as infringement because those elements are not original and, thus, should have been filtered out. Regarding originality, the court said that the standard for originality is a low one, and the “vast majority of works make the grade quite easily.” According to the court, “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.”

Defendants also argued that the jury should not have been permitted to consider the use of the word “dog” and the panting because they were not a part of the composition copyright of Atomic Dog. (Copyright in a composition is separate from the copyright in a sound recording, and Bridgeport owned only the copyright in the composition). Testimony about the creation of Atomic Dog established that the composition was created spontaneously in the recording studio without a written score. According to the court, this means that the composition was embedded in the sound recording. Even though the sheet music for Atomic Dog does not contain the repeated use of the word “dog” and the panting, the court held that those elements are part of the composition for which Bridgeport owns the copyright.

Defendants also argued that the jury should have been instructed to consider the two songs as a whole when determining substantial similarity. Defendants asserted that, hearing such instructions, the jury would not have found substantial similarity due to the different mood and theme of the two songs and the limited usage of elements from Atomic Dog in D.O.G. in Me.

Instead of instructing the jury to consider the works as a whole, the district court utilized the “fragmented literal similarity” standard. This standard has been applied by courts when a small fragment of a work has been copied literally, but not the overall theme or concept. According to the court, there does not appear to be a reported Sixth Circuit opinion explicitly adopting this approach, but the court nonetheless recognized its viability. Because Bridgeport alleged in its complaint that defendants had copied specific elements of Atomic Dog and that these elements were copied literally, the court held that the overall concept or tone of the work was not relevant to the jury’s task. “Instead, the jury heard 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 – in terms of iconology, perhaps the functional equivalent of ‘E.T., phone home.’ Thus, the jury did not act unreasonably in concluding that there was substantial similarity, given evidence that the copied elements had such great qualitative importance to the song.”

Defendants also argued that the jury instructions regarding fair use were erroneous because the jury was not adequately instructed that use of a copyrighted work as an homage to the work could be a fair use. However, the court held that the instructions were an accurate statement of the law regarding fair use and that, moreover, defendants “failed to introduce any evidence that would have explained why the songwriter chose to include elements of Atomic Dog to honor George Clinton, nor was the purported tribute acknowledged in the credits or liner notes to the album.” The court also held that, applying the statutory factors from 17 U.S.C. § 107, the result reached by the jury was not unreasonable.

Finally, the court affirmed the jury instructions regarding willful infringement. The district court instructed the jury that “[a]n infringement is willful when a defendant engaged in acts that infringed a copyright and knew that those actions may infringe the copyright.” According to the court, defendants correctly contended that willful copyright infringement requires evidence that a defendant has knowingly or recklessly infringed on the copyright, and that the district court’s use of the word “may” in the instruction led the jury to believe that it could find willful infringement based on a lesser degree of intent than knowing or recklessness. However, another part of the instructions properly defined the willfulness element; even if the terminology could be said to constitute error, the court found the error harmless “because the jury had an adequate factual basis from which to arrive at a finding of willfulness.”