Our very own Court of Appeals for the Sixth Circuit, in Bridgeport Music, Inc. v. UMG Recordings, Inc., recently affirmed a jury’s verdict that the defendants willfully infringed plaintiff-Bridgeport’s rights in the song “Atomic Dog” – a song created by George Clinton, leader of Parliament-Funkadelic – and awarded the plaintiffs $88,980 in statutory damages.  On appeal, the defendants challenged the correctness of the jury instructions on several grounds but most notable with respect to the instructions on whether the two songs were “substantially similar” in order to find copyright infringement.

The Court of Appeals, like most circuits, previously followed the standard “substantially similar” test which requires the jury to determine “whether a lay observer would consider the works as a whole substantially similar to one another.”  The defendants argued that the jury should have been instructed to consider the two songs “as a whole” in determining substantial similarity, and if the jurors had been so instructed, they would not have found substantial similarity because “the two songs differed in theme, tempo, and style.”

While the Court has still not explicitly adopted a different test, it has once again endorsed the “fragmented literal similarity” approach, an approach used by the lower court, which asks the jury to look at infringing elements in isolation.  Bridgeport alleged that the defendants copied specific elements of “Atomic Dog” and those elements were copied literally.  The jury heard testimony describing 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 court held that the jury did not act unreasonably in finding there was substantial similarity in light of evidence that “the copied elements had such great qualitative importance to the song.”

–Matt