Most copyright scholars will tell you that single words are non-copyrightable. The rationale for this is obvious: permitting copyrightability of such utterances would lead to bizarre forms of monopoly where language’s building blocks could essentially be privatized. The most paradigmatic example is, of course, literature. It hardly needs to be explained how certain words being off limits to the general public would discourage the creation of new works. Do we feel the same way about music? Regardless of how exactly one answers this question, for hip-hop, the answer seems to be, “not really.”
For many music producers, the final phase of production consists of sprinkling additional elements to accent certain parts of a song, commonly known as adding the “finishing touches.” In hip-hop, these finishing touches sometimes take the form of vocal snippets, often from singers of days past. From James Brown grunting “unh!” to Eddie Bo shouting “oh!” these utterances serve a significant purpose despite going largely unnoticed by listeners. Surely, a monotone “oh” would be an unworthy substitute, so there must be something special to these expressions.
Hip-hop loves soul, and the singers of the 60’s and early 70’s are widely believed to have conveyed it best. In this way, the use of such vocal snippets does not merely represent words being re-articulated; their function is highly musical and would not be the same with different source material. In other words, it’s just got to be James Brown. Do we care about artists using these utterances in their own recordings? In most cases, it seems not.
Take, for example, Eddie Bo’s “Hook & Sling.” This song has been the subject of multiple lawsuits, simply because producers have used Bo exclaiming “oh” without permission in their tracks. Most recently, Jay-Z came under attack for using it without authority “over a dozen times” in his song “Run This Town.” The New York Southern District Court granted a motion to dismiss, however, ruling out a claim of any substantial similarity.
Given that Bo’s “oh” allegedly appears just as it did in “Hook & Sling” over and over again, the Court’s rationale seems odd. It actually assumed, arguendo, that Bo’s rendition of “oh” was protectable. This seems significant, but it hardly carried the day. The Court also discussed the concepts of quantitative and qualitative significance, concluding that Bo’s “oh” fit neither. This means that, “quantitatively,” the utterance was too brief to constitute a substantial part of “Hook & Sling” and that, “qualitatively,” Bo did not say “oh” in a way special enough to give an irreplaceable air to the rest of the song. At the end of the day, Bo lost because the Court thought a casual listener would fail to perceive the copy. Accordingly, it seems that Bo’s “oh” is “insignificant” to everyone but Jay-Z’s producer.
Perhaps courts are ill equipped to reach meaningful conclusions on artists’ creative choices with respect to sampling single words, but is there an acceptable alternative? If no judge can seem to pin down the utility of Bo’s “oh” in either “Hook & Sling” or “Run This Town,” that would seem to imply that courts ought not even attempt such a thing. But where would that leave the Lil Jon’s of the world? Surely, it would seem inequitable to allow up and coming artists to play Jon’s signature “YEAH,” “WHAT,” or “OKAY” at the beginning of their songs. Why is this so? Perhaps those utterances are “qualitatively significant” to Jon’s recordings, but how courts would treat the issue remains to be seen.
Single words can obviously be significant in hip-hop recordings, both sonically and emotively. The difficulty lies in determining how and why exactly this is so. Whether one considers the likes of James Brown’s grunts to be sacred to the original artist’s expression or merely permissible tools for modern producers, a more definitive court-drawn line would certainly be noteworthy.
Jackson Yates is a J.D. candidate, ’17, at the NYU School of Law.
