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Circuits Split over Whether Recording Sample Is Infringement or Is De Minimis OK

By Robert J. Bernstein and Robert W. Clarida

In June 2016, in VMG Salsoul v. Ciccone, 13-57104, the U.S. Court of Appeals for the Ninth Circuit held that a 0.23 second sample from a sound recording of three horns simultaneously playing the notes of a chord wasn't copyright infringement. In a 2005 decision, Bridgeport Music v. Dimension Films, 383 F.3d 390 (6th Cir. 2004), amended on rehearing, 410 F.3d 792 (6th Cir. 2005), the U.S. Court of Appeals for the Sixth Circuit held that the sampling of any sound from a sound recording, no matter how brief, trivial or minimal, infringed the copyright in the sound recording. In the ensuing decade since Bridgeport Music, although commentators and a number of district courts outside the Sixth Circuit criticized the decision, its holding had not been considered by any other circuit ' until Salsoul.

In Salsoul, the Ninth Circuit rejected Bridgeport Music's reasoning, thereby creating what it characterized as a regrettable but necessary circuit split, leaving record producers and artists in limbo between strict liability for any sampling if a claim is brought in Nashville, which is in the Sixth Circuit, but subject to a “substantial taking” standard for a sampling claim made in Los Angeles, which is in the Ninth Circuit.

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