Jay-Z came out triumphant after the Southern District of New York dropped its latest order deciding that the entertainer and producer and his entourage did not infringe on another’s copyrights by using their “Oh” in his single Run This Town. The allegedly infringing song features performances by Jay-Z, Rihanna and Kanye West. The original work is called Hook & Sling Part I and it is performed by Eddie Bo and Soul Finders the copyright of which was apparently property of the plaintiff in this case – Tufamerica, Inc. In their complaint, Tufamerica accused Jay-Z’s production company of infringing its copyright by lifting an “Oh” directly from the Hook & Sling Part I song. Apparently, the “Oh” in question was uttered only once at the beginning of the song and it was used in Jay-Z’s single a whapping 42 times.
In his opinion, federal judge Lewis Kaplan boiled the complaint down to a dispute over the sampling of a single word, or rather the exclamation – “oh”, which, as mentioned above, appears 42 times in the allegedly infringing song and lasts for all of 0.03 seconds. In addition to pointing out that the two songs are entirely different, the judge indicated that the sampled exclamation appears only in the background and is not featured in the lyrics or the melody of the alleged infringing recording.
While analyzing the existence of substantial similarity between the two works, which is the legal standard for proving copyright infringement, the judge assessed their quantitative and qualitative similarity. While the judge ultimately decided on the substantial similarity standard, he mentioned as a side note that “oh” may not even be a protectable element as it is a “single and commonplace word” which standing alone “is not deserving of copyright protection”. The judge however shied away from deciding the case on this point and proceeded to do so on the substantial similarity inquiry.
As to the elements of the substantial similarity test, the judge refused to adopt the plaintiff or defendant’s proposed analytical framework which focused either on the substantiality of the element copied or the literal similarity of the copied portion. The court applied instead a “quantitative and qualitative significance” test which measured the overall similarity of the works and sought to establish whether, as a whole, the works were made similar by the copying.
Judge Kaplan quickly did away with the quantitative inquiry by pointing out that the copied portion constitutes but a fraction of the overall work. As to the qualitative element of the test, the judge spent a bit more time wrestling with this prong. At the offset of the discussion, the judge brushed off “adverbs and adjectives that imaginative counsel use” to describe the infinite significance of the exclamation “oh” in the original work. According to plaintiff’s counsel “oh” “sets the exuberant tone for the remainder of the work” and without it, the work “would be materially diminished.”
The judge instead focused on Oh’s role in the lyrics of the song and how creatively it has been performed in the original work. Not surprisingly, the judge concluded that there is no particular significance of “Oh” in the message conveyed by the song and that it “is not the heart of the composition.” Further, Oh is used only once in the original work and it lasts but a fraction of a second.
Based on that analysis, the court concluded that that the qualitative prong is also not met and the two works are not substantially similar such as to sustain a copyright infringement charge. While the case was decided based on the substantial similarity test, the judge found it necessary to single out and dismiss one of plaintiff’s arguments as erroneous and misguided. The argument in question was that using the copied element 42 times changes the equities of the substantial similarity test in plaintiff’s favor. The judge makes it clear that the element must figure significantly in the original work, rather than the allegedly infringing work and the numerous use of “oh” did not contribute to the question whether its copying contributed to the qualitative similarity to the original work. The judge further explained that that “factual copying and actionable copying are not coexistive concepts” which is unquestionably samplable music bit to the sample music artists’ ears. Sampling has been for the past couple of decades a very popular and lucrative new-old form of music making which involves the amalgamation of excerpts of pre-existing recordings, amounting to works which sound entirely different than any of the samples they contain and which have enjoyed significant following. Acclaimed artists such as Moby and Fat Boy Slim have made wildly successful careers by making new renditions of and stitching up old recordings. The controversy arises out of not paying royalties to the artists whose recordings are being sampled and this opinion adds another piece in the ever evolving standard of sampling legally.
As many things copyright, the issue is complex, not least because both sides of the picket line sport convincing arguments. On the sampled artists side: they have created value, which has been used to the prominence and enrichment of another and they should be compensated against free riding on their efforts. On the sampler side: the resulting work usually has absolutely no resemblance to any one of the sampled works and the value of the piece rests with the choice of and stitching up of the sampled works. And as is usually the case, the truth and justice probably lays somewhere midway of those two positions. What we can say in the aftermath of the “Oh” case is that it is a “free for all” for short exclamations contained in pre-existing works – that is, until another federal judge says otherwise.
Read the entire opinion here.