Academic journal article The University of Memphis Law Review

Copyright-The De Minimis Defense in Copyright Infringement Actions Involving Music Sampling

Academic journal article The University of Memphis Law Review

Copyright-The De Minimis Defense in Copyright Infringement Actions Involving Music Sampling

Article excerpt


In truth, in literature, in science and in art, there are, and can be, few, if any, things, which, in an abstract sense, are strictly new and original throughout. . . . The thoughts of every man are, more or less, a combination of what other men have thought and expressed, although they may be modified, exalted, or improved by his own genius or reflection.1

Music sampling, in recent years, has become a mainstay in nearly all genres of popular music. Sampling involves copying a musical work-usually a small portion that is subsequently modified by sound engineers-and incorporating that sample in a new musical work. Sampling has engendered a string of copyright infringement lawsuits that courts are beginning to address. In the last two years, two circuit courts have reached different conclusions in the only music sampling cases that have reached the appellate level thus far. Though there are factual differences between the two cases, it appears that a circuit split is developing over whether musicians can invoke the de minimis defense-based on a Latin maxim meaning "the law does not concern itself with trifles"-in copyright infringement suits concerning unlicensed, short samples of copyrighted works.2

This Note addresses the relevance of the de minimis defense to music sampling copyright infringement cases and offers an alternative hypothetical standard to the tests currently used by the circuit courts. The analysis will demonstrate that the currently employed formulations of the de minimis defense do not adhere to the policy behind copyright law. Part II presents an overview of relevant copyright law, policy concerns, and the history and mechanics of music sampling. An examination of the de minimis defense and its use in two recent circuit cases dealing with sampling in copyright infringement actions follows in Part III. A critical examination of the rules employed by the circuits comprises Part IV, and an analysis of the proper role of the de minimis defense in music sampling actions concludes the analysis in Part V.


A. Copyright Protection

Article I, section 8 of the United States Constitution grants Congress the power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."3 Congress first exercised this power by adopting the Copyright Act of 1790 (1790 Act),4 which granted protection to authors of maps, charts, and books against unauthorized printing and sale of their works for a term of fourteen years with a renewal of an additional fourteen years.5 A revision of the 1790 Act in 1831 extended the initial term of protection to twenty-eight years, but the renewal option remained at fourteen years.6 While the 1790 and 1831 Acts were later superseded by the Copyright Act of 1909,7 which was itself superseded by the Copyright Act of 1976 (1976 Act),8 the trend of statutory extension of copyright duration and scope continues. The most recent substantial addition to copyright law, the Digital Millennium Copyright Act of 1998,9 exemplifies the trend. Over time, Congress has also strengthened penalties for copyright infringement by adding both civil remedies and criminal sanctions to the relevant statutes.10 Though the multiple revisions to copyright law have addressed copyright in different ways, increasing protection has remained a constant.

An individual desiring copyright protection in the present-day United States must comply with the statutory provisions of the 1976 Act as amended. Section 102 of title 17 of the United States Code sets out the basic requirement for copyright protection, stating: "Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. …

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