Jay-Z has come out on top in a plagiarism suit over his use of the word “oh” in the 2009 hit, “Run This Town” from The Blueprint 3. Record label TufAmerica claimed he violated copyright by sampling the single syllable from an older recording called “Hook & Sling Part 1.”
Today, New York federal judge Lewis Kaplan dismissed the lawsuit. In his ruling, he analyzed any possible similarities between the two songs, as well as whether the word “oh” is something that can be copyrighted.
“The word ‘oh’ is a single and commonplace word,” he wrote. “Standing alone, it likely is not deserving of copyright protection… As this motion may be resolved on other grounds, however, the Court need not decide whether the word ‘oh,’ as it appears in the Composition, is protectable.”
Instead, he decided to focus on the quantitative musical similarities between the two songs, if any, and whether the allegedly borrowed “oh” represented a significant commonality. Although the “oh” snippet was repeated over 40 times in “Run This Town,” the Court found that the sample – if it even was a sample – appears “only faintly in the background,” and is “at best, only barely perceptible to the average listener.”
“Plaintiff’s tautological argument that ‘oh’ must be qualitatively significant to ‘Hook & Sling Part I’ and to the ‘Hook & Sling’ master because defendants sampled it more than 40 times in ‘Run This Town’ misunderstands copyright law generally and the substantial similarity test in particular,” said Judge Kaplan. In the end, TufAmerica’s argument that their “impecunious artists” had been taken advantage of by “successful artists and increasingly-large record labels and music publishers” did not stick.
However, tiny samples have made for successful plagiarism suits in the past. In a 2006 case involving an N.W.A rap song and a Funkadelic riff, the 6th Circuit Court of Appeals cracked down on their sampling and looping of a two-second guitar chord. At the time, an appeals court instructed the defendants to “Get a license or do not sample.”
According to Judge Kaplan, though, no two cases are alike, and not every instance of copying is infringement. In this scenario, he said, “plaintiff improperly conflates factual copying and actionable copying.”