Tufamerica Inc. v. WB Music Corp. et al., No. 1:13-cv-07874-LAK (SDNY filed 12/08/14) [Doc. 19].
The Court dismissed a claim against Jay-Z that was based on the sampling and use of the word “oh” in an audio recording and music video entitled Run This Town. Plaintiff’s works were a composition and a pre-1972 sound recording thereof in each of which the word “oh” appears once. The Court held that, even assuming that defendants copied, or “sampled,” a portion of plaintiff’s works, plaintiff had not stated a plausible claim because there was no substantial similarity.
According to the Court, "Run This Town bears very little and perhaps no similarity at all to [Plaintiff's song]. The melody and lyrics are entirely different. The lyrics do not contain the word 'oh'. And while the Court assumes, as plaintiff contends, that the alleged 'sample' of that word appears in the accused recording and video 42 separate times, it must be said also that it does so, if at all, only in the background and in such a way as to be audible and aurally intelligible only to the most attentive and capable listener."
The Court observed, in dicta, that plaintiff's usage of the word "oh" in the composition likely was not subject to copyright protection, though it may have been in the sound recording. However, the Court found other grounds to dismiss and therefore assumed "oh" was protectable. Specifically, the Court found there was no substantial similarity.
First, the "oh" was not quantitatively significant in either the composition or sound recording thereof. Second, the court found that the qualitative significance of "oh" in plaintiff's work was insufficient. "Oh" was not the heart of the composition, having appeared only once and being a common word. As to the recording, "oh" only appeared at the beginning, and was a replaceable term; indeed, "oh" could have been removed completely without significantly changing the essence of the recording. That Jay-Z used the "oh" more than 40 times did not change the analysis, because what is relevant is the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole (not the significance to the defendant's work).