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Dec. 9 — A record sample that consists of the single word “oh” and can barely be heard in the background of a new recording is insufficient to state a plausible claim for copyright infringement, the U.S. District Court for the Southern District of New York ruled Dec. 8.
Granting a motion to dismiss for failure to state a claim for which the law offers relief, the court said that the “oh” was neither quantitatively nor qualitatively significant to the original recording.
Edwin J. Bocage (1930-2009) was a jazz, blues, soul and funk singer, pianist and recording artist known as “Eddie Bo.” In 1969, Bo composed “Hook and Sling Part 1,” which he recorded with his group, Eddie Bo and the Soul Finders, to be accompanied by a dance move of the same name.
In 1996, TufAmerica Inc., the owner of hip-hop music label Tuff City Music Group, acquired the rights to recordings owned by the Scram Records label and the Uzza Music publishing company from owner Al Scramuzza.
Among the works included in the acquisition was the musical composition and sound recording of “Hook and Sling Part 1.”
Shawn C. Carter, known professionally as “Jay-Z,” is a rap artist and record producer. In 2009, he released his 11th studio album, “The Blueprint 3,” which included the track “Run This Town,” featuring contributions from performers Kanye O. West and R. Rihanna Fenty, known simply as “Rihanna.”
In 2014, TufAmerica sued Carter, WB Music Corp., and several other entities associated with the release of “Run This Town,” alleging copyright infringement. According to TufAmerica, “Run This Town” copies without authorization portions of the Eddie Bo recording of “Hook and Sling Part 1.”
The court immediately zeroed in on the fact that the alleged sampling was merely the single word “oh,” which was sung only once by Eddie Bo before the opening countdown in original recording but was used 42 times in “Run This Town.”
However, those 42 times occurred “only in the background and in such a way as to be audible and aurally intelligible only to the most attentive and capable listener.”
Thus, regardless of whether Eddie Bo's performance of the single word “oh” could be considered protectable as an original work of expression, the appearance of this word had no quantitative nor qualitative significance to the Eddie Bo recording.
Specifically, the court noted that the shouted “oh” at the beginning of Eddie Bo's recording was not “inherently or especially important” to the message or the theme of the song and thus was not “the heart of the composition.”
The court said that had the “oh” “been replaced by any of a host of monosyllabic or duosyllabic utterances,” there would have been no qualitative change to “Hook and Sling Part 1.”
Additionally, the fact that “Run This Town” had allegedly used the sample more than 40 times did not mean that the “oh” was significant to “Hook and Sling Part 1,” the court said.
“Its significance to the defendants' work is irrelevant,” the court said.
Noting again that the uses of “oh” in “Run This Town” were “barely perceptible to the listener,” the court concluded that there was no substantial similarity between the two works.
The court concluded that there was no plausible claim of substantial similarity and granted the defendants' motion to dismiss.
The court's opinion was issued by Judge Lewis A. Kaplan.
TufAmerica was represented by the Law Office of Kelly D. Talcott, Sea Cliff, N.Y. WB Music was represented by Pryor Cashman LLP, New York.
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