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United States: Appellate Court Holds Excessive Sampling of George Clinton’s “Atomic Dog” Violated Copyright

(Dec. 14, 2009) A U.S. federal appellate court has upheld a jury verdict awarding copyright infringement damages to owners of the rights to George Clinton's 1982 classic, “Atomic Dog,” against a hip-hop group that used samples of that song in a new composition.

The lawsuit was brought by the rights owners of Atomic Dog, which is famous for its refrain of “bow wow wow, yippie yo, yippie yea,” the use of the word “dog” in a low tone of voice at regular intervals, and the sound of rhythmic panting. The suit claimed that the R&B/hip-hop group Public Announcement violated copyright by using these distinctive elements in their 1998 song, “D.O.G. in Me.” A jury returned a verdict for the plaintiffs, awarding actual and statutory damages. The defendants appealed the verdict to the United States Court of Appeals for the Sixth Circuit.

The defendants argued that Atomic Dog's use of the word “dog” as musical punctuation and the song's “rhythmic panting” were not original or copyrightable. The Sixth Circuit disagreed, citing expert testimony that the word “dog” in the song constituted a “stand-alone melody of one word” used as musical punctuation at intervals on the tonic note of the song and that the sound of panting followed the rhythm of the song. The defendants also argued that any copying of Atomic Dog was a “homage or tribute” permissible under the fair use defense to copyright infringement. The Sixth Circuit rejected this argument, finding that taking all of the fair use factors as a whole into account rendered the defense inapplicable. (Bridgeport Music, Inc. v. UMG Recordings, Inc., No. 07-5596 (6th Cir. Nov. 4, 2009), available at http://www.ca6.uscourts.gov/opinions.pdf/09a0383p-06.pdf.)