Newton v. Diamond
68 U.S.P.Q. 2d (BNA) 1740, 349 F.3d 591, 62 Fed. R. Serv. 1178 (2003)
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Rule of Law:
The unauthorized copying of a portion of a copyrighted work is not actionable infringement if the use is de minimis. A use is de minimis if the copied portion is not quantitatively or qualitatively significant in relation to the plaintiff's work as a whole, such that an average audience would not recognize the appropriation of the author's composition.
Facts:
- In 1978, James W. Newton, an avant-garde jazz flutist, composed the song 'Choir' for flute and voice.
- The composition's score contained a segment consisting of a three-note sequence (C-D flat-C) sung over a held C note on the flute.
- In 1981, Newton recorded a performance of 'Choir' and licensed the exclusive rights to the sound recording to ECM Records, but he retained all rights to the underlying musical composition.
- In 1992, the musical group Beastie Boys obtained a license from ECM Records to use a six-second sample from the 'Choir' sound recording.
- Beastie Boys did not obtain a license from Newton to use the underlying composition of 'Choir'.
- Beastie Boys digitally incorporated this six-second sample into their song 'Pass the Mic,' looping it numerous times as a background element.
Procedural Posture:
- James W. Newton filed suit against the members of Beastie Boys and their business associates in the U.S. District Court for the Central District of California, alleging copyright infringement and Lanham Act violations.
- The district court dismissed Newton's Lanham Act claims.
- The district court subsequently granted summary judgment in favor of Beastie Boys on the copyright infringement claim, holding the sample lacked originality and that its use was de minimis.
- Newton, as the appellant, appealed the district court's grant of summary judgment to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does the use of a quantitatively and qualitatively insignificant portion of a copyrighted musical composition in a new work constitute actionable copyright infringement?
Opinions:
Majority - Chief Judge Schroeder
No. The use of a quantitatively and qualitatively insignificant portion of a copyrighted musical composition is de minimis and therefore does not constitute actionable copyright infringement. To determine if a sample of a musical composition is infringing, the court must 'filter out' any licensed elements, such as the unique performance aspects captured in a sound recording, and analyze only the unlicensed compositional elements. The court then assesses whether the copied portion is quantitatively and qualitatively significant in relation to the plaintiff's work as a whole. Here, the three-note segment was quantitatively minuscule—appearing only once in Newton's multi-minute composition. Qualitatively, Newton failed to show that this simple, common musical figure was significant to the overall composition; his experts' testimony primarily highlighted the uniqueness of his performance, which Beastie Boys had properly licensed. Because the copied portion of the composition was insignificant, an average audience would not recognize the appropriation of Newton's compositional work, making the use de minimis and not actionable.
Dissenting - Judge Graber
Yes. A reasonable jury could find that the use was not de minimis, and therefore the court should not have granted summary judgment. The majority improperly concludes that the sampled portion of the composition is insignificant as a matter of law. Newton presented expert testimony that the composition itself—not just the performance—is unique and recognizable because the score explicitly requires a special playing technique (singing specific pitches while fingering another). The majority took an expert's description of the notes as a 'simple 'neighboring-tone' figure' out of context, ignoring the expert's conclusion that this figure, when combined with the specified technique, creates a unique and distinctive result. Because there is a genuine factual dispute about the qualitative significance of the sampled composition, the question of whether an average audience would recognize the appropriation should be decided by a jury, not a judge.
Analysis:
This decision solidifies the de minimis defense for music sampling cases in the Ninth Circuit, establishing that fragmented literal similarity is not infringing if the copied portion is sufficiently trivial. It creates a crucial distinction between the copyright in a sound recording (the performance) and the copyright in the underlying composition (the written music), requiring courts to 'filter out' licensed performance elements when analyzing infringement of the composition. This approach provides more flexibility for artists using small, common samples compared to the stricter, bright-line rule against any unlicensed sampling articulated by the Sixth Circuit in Bridgeport Music, Inc. v. Dimension Films. The case underscores that the infringement analysis focuses on the copied portion's significance relative to the original work, not its prominence in the new work.
