Who Speaks Latin Anymore? Translating De Minimis Use for Application to Music Copyright Infringement and Sampling

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INTRODUCTION

James Newton (1) discovered that he was featured on the Beastie Boys' "Pass the Mic" (2) eight years after the song's release. (3) In fact, he learned of his music's unauthorized use and widespread distribution from a student in a class he taught at California State University, Los Angeles. (4) Newton's plunge into popular hip-hop music was limited to a six-second snippet of his song "Choir," (5) which the Beastie Boys looped over forty times to create the background for "Pass the Mic." (6) Newton composed and performed "Choir" on his 1982 album Axum. (7) The sample used by the Beastie Boys is a six-second segment in which Newton "fingers a 'C' above middle 'C' on the flute, while singing the same 'C,' ascending one-half step to a 'D-flat,' and descending again to the 'C." (8) Upon Newton's discovery of this use without consent, he sued the Beastie Boys, claiming that the use of this three-note sample amounted to an infringement of the copyright in his work. (9)

Although prior to using the sample the Beastie Boys secured a license from ECM, the recording company that possessed the rights to Newton's recording, (10) they did not notify Newton of their intended use or obtain a license in the composition from him. (11) The U.S. District Court for the Central District of California, in May 2002, ruled in favor of the Beastie Boys, granting their motion for summary judgment. (12) The court reasoned that the Beastie Boys possessed a license for the sound recording, giving them a right to use it. (13) The court separately considered whether the Beastie Boys needed to obtain a license in the underlying composition. (14) The court only looked at the musical qualities actually represented in the written composition, and concluded that, in this case, the composition was qualitatively different from the sound recording. (15) The written composition did not note the "Newton technique' [or] ... mention ... overblowing the 'C' note," both techniques that made the recording distinct. (16) Thus, the copyright in the composition did not cover these added effects. (17) Here, the court found the use of the musical notes in the underlying composition to be de minimis because the sample was "so trivial" that it did not break the "quantitative threshold of substantial similarity." (18) Breaking this threshold is necessary for a finding that the defendant infringed the copyright in the composition. (19) Here, even though Newton controlled the rights in the composition, there was no "actionable copying" on which his suit could stand. (20)

This Note analyzes this finding of de minimis infringement and the tests courts use to make this determination. To begin, Part I of this Note describes the process of music sampling. Part II provides a background on copyright law. Part III discusses de minimis use and the tests courts apply to find de minimis use. This Part also describes how modern copyright law addresses music sampling by looking at the tests courts employ to rule on de minimis infringement. This analysis focuses on the determinations of substantial similarity used in the Second and Ninth Circuits. Specifically, this analysis includes the recent application of these tests in the Ringgold v. Black Entertainment Television (21) and Sandoval v. New Line Cinema Corp. (22) cases from the Second Circuit, and the McCulloch v. Albert E. Price, Inc. (23) case from the Ninth Circuit. Other tests exist, but are used infrequently by courts and are more difficult to apply to sampling due to the peculiarities of music. (24) Even translating the "abstractions" test of the Second Circuit (25) and "total concept and feel" test of the Ninth Circuit (26) into the arena of music sampling poses many problems. The vague nature of these tests allows them to be applied more readily to music than other tests, but that nature also means the standard for defining de minimis infringement is weak and wavering. Finally, Part IV of this Note addresses these problems and suggests a new test that is intended to achieve more accurately the goals of copyright law and to offer a better-defined standard for its practical application. …