*272 OPINION
This copyright-infringement case is “one of several hundred filed by [Bridgeport Music, Inc., and Southfield Music, Inc.] against entities and/or individuals associated with the ‘rap’ or ‘hip-hop’ music industry,” seeking declaratory judgment, injunctive relief, and damages from some 800 defendants for copyright infringement under the federal copyright statute, 17 U.S.C. §§ 101 et seq.
Bridgeport Music, Inc. v. Still N The Water Publ’g,
Public Announcement, an R & B and hip hop group, released the song “D.O.G. in Me” on their All Work, No Play album in 1998. Bridgeport claims that “D.O.G. in Me” infringed its copyright on Clinton’s “Atomic Dog” based on the use of the phrase “Bow wow wow, yippie yo, yippie yea” (the “Bow Wow refrain”), as well as use repetition of the word “dog” in a low tone of voice at regular intervals and the sound of rhythmic panting in “D.O.G. in Me.” A jury later found UMG Recordings, Inc., and Universal Music Group, Inc. (collectively, UMG or the defendant), to have willfully infringed Bridgeport’s rights in “Atomic Dog” and awarded statutory damages of $88,980. UMG has appealed the verdict, claiming that the jury was improperly instructed and that UMG was entitled to judgment in its favor as a matter of law on the question of “substantial similarity.” We find no reversible error and affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Songwriters David Spradley, Garry Shider, and George Clinton created “Atomic Dog” in a recording studio in January 1982, working without a written score. As a result, the composition of “Atomic Dog” is embedded in the sound recording. 1 Testimony at trial indicated that the song was composed spontaneously — Spradley recorded the initial tracks in the studio and recalled that “when George arrived he had been partying pretty heavily so he was, you know, feeling pretty good,” and was unsteady at the microphone. Spradley and Garry Shider “got on either side of him. We just kind of kept him in front of the microphone” while Clinton recorded *273 the vocal tracks that same night. “Atomic Dog” was released in 1982 on the Computer Games album issued by Capitol Records, which retained the sound-recording copyright to the album. Spradley, Shider, and Clinton later transferred their interest in the composition of “Atomic Dog” to Bridgeport.
According to expert testimony at trial, “Atomic Dog” “is an anthem of the funk era, one of the most famous pieces from that whole era ... one of the most famous songs of the whole repertoire of funk and R & B.” In addition to the song’s continuing popularity on its own, “Atomic Dog” and other works by Clinton and Parliamenh-Funkadelic are said to have influenced many contemporary rap and hip hop artists, with the most notable being the style of rap popularized by West Coast rappers such as Dr. Dre, Ice Cube, Snoop Dogg, and Coolio. See Charles L. Hughes, Clinton, George, in African American National Biography 331, 332 (Henry Louis Gates Jr. & Evelyn Brooks Higginbotham, eds., 2008). Testimony at trial confirmed that “Atomic Dog” and other works by Clinton are among the most popular works sampled by rap and hip hop artists. According to an expert musicologist, the Bow Wow refrain “is one of the most memorable parts of the song” and is often licensed by itself.
In 1998, A & M Records released the album All Work, No Play by the rap group Public Announcement. The album contains the song, “D.O.G. in Me,” composed by songwriter Felony Davis. The following year A & M Records became a division of UMG. In 1998, Bridgeport became aware of “D.O.G. in Me” and contacted UMG’s predecessors in interest, and later UMG itself, notifying them that elements of “Atomic Dog” were used in the recording without permission and requesting that the record label enter into a licensing agreement or cease distribution of the album and song. When no response was received this lawsuit followed.
As copyright owner, Bridgeport brought the action for copyright infringement of various songs in the George Clinton catalog in 2001 against multiple defendants, Bridgeport, Inc., et al. v. 11C Music, Civ. No. 3:01-0412 (M.D.Tenn.2001). After the district court severed the original action, Bridgeport filed an amended complaint UMG. In turn, UMG filed a motion for summary judgment, claiming that the allegedly infringing elements in “D.O.G. in Me” — the use of the word “dog” in a low voice as “musical punctuation,” the rhythmic panting, and the Bow Wow refrain — were not copyrightable as a matter of law. The district court denied UMG’s motion, and the matter proceeded to trial. Following five days of testimony, the jury rendered a verdict in Bridgeport’s favor, finding UMG liable for $22,245 in actual damages and $88,980 in statutory damages. Bridgeport then elected statutory damages and the district court entered judgment in Bridgeport’s favor. The district court denied UMG’s subsequent motion for a new trial and motion for judgment as a matter of law, and UMG appealed.
II. DISCUSSION
Reduced to its essentials, this appeal challenges the propriety of the jury instructions in three respects: substantial similarity, fair use, and willfulness. On appeal, we review jury instructions as a whole “to determine whether they adequately inform the jury of the relevant considerations and provide a basis in law for aiding the jury in reaching its decision.”
Williams v. Paint Valley Local Sch. Dist.,
A. Substantial Similarity
There are two essential questions at the heart of any copyright infringement action: whether the plaintiff owned the copyrighted work and whether the defendant copied it.
See Kohus v. Mariol,
The Sixth Circuit has condensed the substantial-similarity inquiry into a two-part test: first, the court must “ ‘identify[ ] which aspects of the artist’s work, if any, are protectible by copyright’ ” and, second, “ ‘determine] whether the allegedly infringing work is substantially similar to the protectible elements of the artist’s work.’ ”
Kohus,
*275
Once the unproteetable elements have been filtered out, the two works can be compared to determine whether they are substantially similar, a question of fact. We have previously held that the question for the jury in substantial-similarity cases is “ ‘whether a lay observer would consider the works as a whole substantially similar to one another.’ ”
Murray Hill v. Twentieth Century Fox,
In this case, UMG asserts on appeal that the jury was improperly instructed on filtering and substantial similarity and that a properly instructed jury could not have concluded that the two works in question were substantially similar. Specifically, the defendant contends that the jury should not have been able to consider either the word “dog” used as musical punctuation or the rhythmic panting in “D.O.G. in Me” as infringment because those elements are not original and, thus, should have been filtered out. UMG also argues that the jury should have been instructed to consider the two songs as a whole when determining substantial similarity and, so instructed, would not have found substantial similarity due to the different mood and theme of the two songs and the limited usage of elements from “Atomic Dog” in “D.O.G. in Me.” We disagree, based on our conclusions, first, that the jury instructions were not erroneous as a matter of law and, second, that the district court did not abuse its discretion in declining to give the instructions requested by the defendant.
As noted previously, the standard for originality is a low one, and the “vast majority of works make the grade quite easily.”
Feist,
UMG also argues that the jury should not have been permitted to consider the use of the word “dog” and the panting because, as UMG alleges, they were not a part of the composition copyright of “Atomic Dog” but, instead, were elements of the sound recording, in which Bridgeport has no interest. Cited as support for this proposition is the sheet music to “Atomic Dog,” which includes the Bow Wow refrain but not the musical punctuation of “dog” or the panting. The sheet music, however, was created long after the song was composed. Uncontroverted testimony at trial established that the song was composed and recorded in the studio simultaneously and, therefore, that the composition was embedded in the sound recording.
UMG further argues that the district court erred in failing to inform the jury, in connection with the instruction on substantial similarity, that they should consider the similarity of the works as a whole. Given that the two songs differed in theme, tempo, and style, UMG argues, no reasonable jury could have found substantial similarity. But, instead of instructing the jury to consider the works as a whole, the district court utilized the “fragmented literal similarity” standard. We conclude that in the circumstances of this case, there was no error.
Although there does not appear to be a reported Sixth Circuit opinion explicitly adopting this approach, we have recognized its viability.
See Murray Hill Publ’ns v. ABC Comm.,
Here, Bridgeport alleged in its complaint that UMG had copied specific elements of “Atomic Dog” and that these elements were copied literally. Thus, the overall concept or tone of the work was not relevant to the jury’s task. Instead, the jury heard testimony that described 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 jury did not act unreasonably in concluding that there was substantial similarity, given evidence that *277 the copied elements had such great qualitative importance to the song. It follows that the district court did not commit reversible error in basing its instructions on fragmented literal similarity.
B. Fair Use
On appeal, UMG also contends that the district court failed to give the jury an adequate instruction on “fair use,” an affirmative defense that it raised at trial. The doctrine of fair use operates to prevent the mechanistic enforcement of copyright law in a way that would work to repress creativity.
See Princeton Univ. Press v. Mich. Doc. Servs., Inc.,
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Id.
The Supreme Court has held that these statutory factors must be considered “in light of the purposes of copyright.”
Campbell v. Acuff-Rose Music, Inc.,
On appeal, UMG claims that an erroneous instruction prevented the jury from
*278
considering its fair-use defense,
i.e.,
that copying certain elements from “Atomic Dog” in “D.O.G. in Me” was intended as an homage or tribute and that a properly instructed jury would have concluded that the use of these elements for that purpose was fair. Specifically, the defendant assigns error to the district court’s charge to the jury that an homage or tribute is “not necessarily fair use.” That charge is, however, an accurate statement of the law.
See
17 U.S.C. § 107 (purpose and character of the use is only one factor);
Campbell,
Applying the statutory factors from 17 U.S.C. § 107, we conclude that the result reached by the jury was not unreasonable. Although one of them perhaps weighs in favor of UMG, on balance it is clear that the greater weight favors Bridgeport. “D.O.G. in Me” is certainly transformative (first factor), having a different theme, mood, and tone from “Atomic Dog.” However, as an original musical composition, “Atomic Dog” is clearly within the core of copyright protection (second factor). Moreover, although the scope of use by “D.O.G. in Me” consisted of relatively small elements of the song, testimony at trial indicated that they were the most distinctive and recognizable elements of “Atomic Dog” (third factor). Finally, although UMG argued that the market for “Atomic Dog” was not the same as for “D.O.G. in Me,” the effect on the market of the copyrighted work also includes the market for derivative works. Given the fact that “Atomic Dog” is one of the most frequently sampled compositions of the Funk era, Bridgeport could lose substantial licensing revenues if it were deprived of its right to license content such as that used by UMG. Hence, we cannot say that the jury’s verdict was against the great weight of the evidence.
C. Willfulness
Finally, UMG contends that the jury instruction regarding willful infringement was in error. The federal copyright statute provides for the imposition of greater penalties “[i]n a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully.” 17 U.S.C. § 504(c)(2). In this case, the district court instructed the jury that “[a]n infringement is willful when a defendant engaged in acts that infringed a copyright and knew that those actions may infringe the copyright.” UMG contends, correctly, that willful copyright infringement requires evidence that a defendant has knowingly or recklessly infringed on the copyright,
see Zomba Enters., Inc. v. Panorama Records, Inc.,
Because we review jury instructions as a whole, we must first put the sentence highlighted by the defendant in context. The jury was instructed on the defendant’s innocent infringement defense, and the court added that “[a]n infringement becomes a willful infringement if a defendant acquires knowledge that its actions infringe a copyright and the defendant nevertheless continues such infringement.” This instruction *279 directly addresses the requisite knowledge for infringement. Read as a whole, it appears that the jury received a correct instruction on willful infringement.
The use of the word “may” with regard to the willfulness standard was, at most, a ease of awkward grammar. Even if the terminology could be said to constitute error, we would find the error harmless because the jury had an adequate factual basis from which to arrive at a finding of willfulness. Nor can we endorse the defendant’s claim that its good-faith belief that incorporation of elements from “Atomic Dog” was fair use negates willfulness. True, we held in
Princeton University Press
that “one who has been notified that his conduct constitutes copyright infringement but who reasonably and in good faith believes the contrary is not ‘willful’ for these purposes.”
III. CONCLUSION
For the reasons set out above, we AFFIRM the judgment of the district court.
Notes
. As we noted in
Bridgeport, Inc.,
A musical composition consists of rhythm, harmony, and melody. See 1 Melville B. Nimmer & David Nimmer, Nimmer On Copyright. § 2.05[D], As described by Appellees, a musical composition "is a particular sequence and arrangement of lyrics and/or music that comprise what most people refer to as a 'song.' ” Under the copyright act, " ‘sound recordings’ are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work.” 17 U.S.C. § 101. Sound recordings and their underlying musical compositions are separate works with their own distinct copyrights. See 17 U.S.C. § 102(a)(2), (7).
. An example of
scenes a faire,
or "stock” themes, in music is found in
Black v. Gosdin,