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Decision of Note: <B>Song Sampling is Found <i>De Minimis</i></B>
The U.S. Court of Appeals for the Ninth Circuit decided that placing a sampling loop of a six-second, three-note segment from a musical composition into a new sound recording wasn't copyright infringement because the use was de minimis. Newton v. Diamond, 02-55983.
In the case, the Beastie Boys had obtained a license to use a sample of the sound recording of flutist James Newton's “Choir” in the rap group's “Pass the Mic.” (Newton had granted his record label, ECM Records, rights in the sound recording. See the grant of rights from Newton to ECM and the license from ECM to the Beastie Boys.) When Newton filed an infringement suit over the composition, which he owned, the district court granted summary judgment to the defendants on the ground that the C-D flat-C sequence ' played with a background C note ' from “Choir” wasn't original enough to be copyrightable. The lower court also ruled that even if the sequence was copyrightability, the Beastie Boys' use was de minimis.
Affirming, the appeals court focused only on the de minimis issue (which assumes the song segment is original enough for copyright protection). “To say that a use is de minimis because no audience would recognize the appropriation is thus to say that the works are not substantially similar,” the appeals court noted.
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