George Clinton's 1982 funk standard Atomic Dog was the subject of an opinion handed down by the U.S. Court of Appeals for the Sixth Circuit yesterday in Bridgeport Music, Inc., et al. v. UMG Recordings, Inc., et al., No. 07-5596.

The appeal stemmed from a copyright infringement action in the U.S. District Court for the Middle District of Tennessee.  Bridgeport Music, which owns the copyright in the sound recording of Atomic Dog, sued UMG Recordings, the parent company of A&M Records, which released the album All Work, No Play and the song D.O.G. in Me by the rap group Public Announcement.  Bridgeport alleged that D.O.G. in Me infringed Atomic Dog because Public Announcement incorporated three elements from Atomic Dog in D.O.G. in Me: the use of the word "dog" in a low voice as musical punctuation, rhythmic panting, and the refrain "bow wow wow, yippie yo, yippie yea," referred to by the court in abbreviated form as the "Bow Wow refrain."

UMG lost at trial and faced liability for $88,980 in statutory damages to Bridgeport.  On appeal, UMG's primary assignment of error focused on the District Court's jury instruction with respect to substantial similarity.  UMG claimed that the District Court erred because it failed to filter out the use of "dog" as musical punctuation and rhythmic panting, because those two elements were not original.  Moreover, UMG claimed, the jury should have considered the two songs at issue as a whole rather than comparing individual elements in isolation.

The Sixth Circuit affirmed the District Court, relying on the principles of "fragmented literal similarity," which means that even a small degree of copying may support a finding of substantial similarity when the copied material is an integral part of the work.

The Sixth Circuit also rejected UMG's claims that the District court erred in its jury instructions on UMG's fair use defense and on willful infringement.