Excessive Barking May Lead to Liability

The Sixth Circuit recently ruled in a copyright case involving George Clinton, the funktastic leader of Parliament Funkadelic, who first used the phrase “bow wow wow, yippie yo, yippie yea” 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.”

The song “featured the Clinton lyrics as well as several uses of the word ‘dog.'” The Sixth Circuit 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.”

“Atomic Dog” was 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.” The song was basically ad-libbed – there was no written composition at all. 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.

Universal Music Group, which owns the 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. It awarded $89,000 in damages for the unlicensed woofing.

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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.” Experts testified that these elements were not just the “mere abstract idea” of a dog or of the activity of panting.

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. 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.”

Copyright law can be complex. Even seemingly innocuous phrases can be considered protected intellectual property.

The music industry continues to evolve, and we’ll see more cases like this one, with a continued conversation about the boundaries of fair use and copyright infringement, potentially involving lawyers on both sides.