Ninth Circuit Rules that Sampling of Jazz Composer’s Copyright is De Minimis Noninfringement

In a decision regarding the prevalent practice of musicians “sampling” others’ sound recordings, the Ninth Circuit granted hip hop group Beastie Boys summary judgment, finding that their use of a musical composition was de minimis, or trivial copying, and thus not infringement of a jazz flutist James Newton’s composition, “Choir.” The court found that the Beastie Boys did not appropriate “the overall essence or structure” of the composition such that the average audience would recognize Newton’s work. Instead, the court held that the sequence constituted only a minimum percentage of the entire work of Choir and that the three-note sequence was “simple” and “generic,” – not unique. Because the Beastie Boys had already obtained a license in the sound recording of “Choir,” the Ninth Circuit only considered whether the composition was infringed.The three note, six-second sample comprised two percent of the approximately five minute song, “Choir.” The Beastie Boys “looped” this sample as a background element of its work “Pass the Mic,” so that the sample was heard repeatedly throughout.
In its decision, the Central District of California granted Beastie Boys summary judgment for two reasons. Newton v. Diamond, 204 F. Supp. 2d 1244 (C.D. Cal. 2002). First, the trial court found that the three sampled notes lacked sufficient originality to be protected under copyright. Second, it held that even if the notes could be protected under copyright, Beastie Boys’ sampling was de minimis.
On appeal, the Ninth Circuit did not consider whether the copyright owner’s three notes were sufficiently original to be protected under copyright. Rather, it presumed that the notes could be protected. Before proceeding with its analysis, the court “filtered out” the non-composition aspects of “Choir” before determining whether the similarity between Newton’s and the Beastie Boys’ work was substantial enough to constitute infringement of the composition. The filtering essentially removed “elements unique to Newton’s performance” from consideration. The court reiterated that the Beastie Boys had already obtained a license in the sound recording of “Choir,” which covered Newton’s performance.
Looking only at the composition, the court found that Beastie Boys copying was de minimis because there was only “fragmented literal similarity” between their and Newton’s works. Fragmented literal similarity exists when a small portion of a work is copied exactly or nearly exactly, without appropriating the work’s overall essence or structure. The court determined whether the copying was trivial or whether it incorporated the overall essence or structure of the piece by examining the quantitative and qualitative significance of the copied portion in relation to the Newton’s “Choir” as a whole.
Quantitatively, the court held that the three note sequence appears only once in “Choir” and comprises only two percent of an approximately four minute song. Because the court examines the quantitative significance of the copied portion in relation to the plaintiff’s work, not the defendant’s, the court said it was irrelevant that the Beastie Boys “looped” the sample as a background element of its work, so that the three-note sequence was heard repeatedly throughout “Pass the Mic.”
Qualitatively, the court held that Newton offered no evidence that the three-note sample was particularly significant to the composition as a whole. The court relied, in part, on expert witnesses that called the three-note sequence a “simple neighboring tone figure” or a “generic three note sequence.” Also, the court noted that since the copyrighted composition was a jazz improvisational piece, which is typically sparse in its compositional instructions, the copyrightable expression in a piece relies heavily on the expression found in the performance.
For these reasons, the court upheld the district court’s grant of summary judgment, finding that no reasonable jury could find that infringement had occurred since Beastie Boys copied only trivial portions of Newton’s piece “Choir.”
The dissent held that summary judgment was not appropriate because the composition sampled by the Beastie Boys, separate from the performance of that composition, was not generic. The majority, the dissent held, mischaracterized the composition as merely a three note sequence. Rather, the dissent found that the composition comprised a “three note sequence, sung above a fingered held C note, for a total of four separate tones.” The dissent found that the instruction for a performer to utilize a “fingered held C note” were instructions or a “playing technique” that was a built-in feature of the composition – separate from Newton’s performance. This, the dissent found, could constitute sufficient originality in the composition such that Beastie Boys infringed Newton’s work.

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