In a win for funk and a loss for free barking, the singer George Clinton has won a copyright infringement claim and appeal in the US against Universal Music Group (“UMG”) over the use of Clinton’s lyrics “Bow wow wow, yippie yo, yippie yea” (known within “hip” judicial circles as the “Bow Wow Refrain”) in the song “D.O.G in Me” released by hip hop group Public Announcement in 1998.
The Bow Wow Refrain was the chorus to the Clinton song “Atomic Dog” and was explained by an expert at the trial to be “an anthem of the funk era, one of the most famous pieces from that whole era… one of the most famous songs of the whole repertoire of funk and R&B.” Both songs also included the word “dog” said in a low tone and rhythmic panting….
Evidence was led that the Bow Wow Refrain was composed spontaneously – Clinton came up with the refrain after he had “been partying pretty heavily so he was, you know, feeling pretty good”. So much so that to record the song Clinton had to be propped up in front of the microphone by his band members!
Clinton has often licensed use of the Bow Wow Refrain. It was part of Snoop Doggy Dogg’s 1993 song “What’s my name?”, and his protégé Lil’ Bow Wow’s (now known as Bow Wow in his old age) 2000 song “Bow Wow (That’s My Name)”. However in this case, Public Announcement used the Bow Wow Refrain without licence from Clinton.
On appeal the US Sixth Circuit Court cited the infamous Feist decision on what is required to establish originality, namely that the part must be an independent creation of its author and involve at least minimal creativity. The court then went on to conduct a substantial similarity assessment, and noted that the copying of a relatively small but quantitatively important or crucial element can form the basis of a finding of substantial similarity (in the US this is known as “fragmented literal similarity”).
At the appeal, UMG argued:
the initial jury was misdirected about how to apply the relevant US substantial similarity tests, in particular that the jury had been told to apply the fragmented literal similarity test instead of comparing the two songs as a whole;
the use of the word “dog” said in a low voice and the rhythmic panting could not be considered original, as these were merely musical punctuation and not part of the sheet music to “Atomic Dog”;
that in the alternative a fair-use defence was made out as the Bow Wow Refrain was used in homage to Clinton.
The US Sixth Circuit Court rejected UMG’s “funky” arguments and affirmed the jury decision, finding that the use of the Bow Wow Refrain amounted to copyright infringement and affirmed the award of damages totalling USD$111,225.