How Little Is Too Little? New Ruling Provides Guidance On When Digital Music Sampling Constitutes Copyright Infringement

Intellectual Property & Technology Newsletter

March 2004

Over the past few years, music publishers and record companies have been faced with difficult copyright issues involved in the digital “sampling” of music.  “Sampling,” a practice commonly used in rap and electronic music, refers to the technique by which an artist will digitally “lift” a fragment of an existing sound recording and place that fragment in a new recording.  Such digital samples typically are short, ranging from two or three notes to a few seconds.  However, it is not uncommon for recordings to contain multiple samples, or for a single “sample” to appear more than once in the new recording.  Some samples may be “looped” several times or throughout the new recording.
 

The short length of samples and the varying ways in which they may be used in musical recordings has created a great deal of controversy and confusion concerning the manner and types of licenses (or “clearance”) required to use a sample in a sound recording, as well as when an unauthorized use may subject an artist or his or her record label to a copyright infringement claim.  Because no hard and fast rules exist as to how much of a musical work may lawfully be used without a license, it often is difficult to determine when a license is required for the use of a digital sample.  The issue is further complicated by the fact that the copyright in a sound recording is separate and distinct from rights in the underlying musical composition (i.e., the words and music), and that these separate copyrights often are owned by different persons or entities.
 

In Newton v. Diamond, the United States Court of Appeals for the Ninth Circuit recently addressed these difficult issues, providing some clarity to those engaged in sampling.  The plaintiff, a jazz flutist and the owner of a musical composition entitled “Choir,” brought an action against members of the rap group “Beastie Boys,” claiming that the Beastie Boys had infringed “Choir” by sampling a short, three-note, six-second portion of “Choir” in their recording “Pass the Mic.”  Notably, the Beastie Boys had obtained a license for the “Choir” sound recording (owned by a third party) but had not obtained a license to use the underlying musical composition, which was owned by Newton.  (The Beastie Boys were only alleged to have infringed the composition, not the sound recording.)
 

The court found that the Beastie Boys’ use of “Choir” was not infringing, applying a longstanding but fairly undeveloped copyright doctrine known as “de minimis” use.  The de minimis use doctrine (from the Latin de minimis non curat lex - “the law does not concern itself with trifles”) is based on the basic copyright principle that even where the fact of copying is conceded, only “substantial” copying - not “trivial copying” - constitutes copyright infringement.  
 

The court held that, in order for a use to be considered “trivial,” courts must consider two separate components of the use: (1) the “qualitative” significance of the portion copied to the work as a whole - that is, the “subjective” importance of the sample to the overall work; and (2) the “quantitative” significance of the sample - in other words, the percentage of the work copied by the defendant.  Applying this quantitative/qualitative test to the Beastie Boys’ “Pass The Mic,” the court found that the three-note portion of “Choir” used in “Pass The Mic” was not quantitatively significant because it comprised only a few seconds of the song, and was not qualitatively significant because there was nothing particularly special or important about the sample in question.
 

In addition to reaffirming the doctrine of de minimis use in the music sampling context, Newton confirms two additional legal points of importance in music sampling cases:  First, in determining whether a particular use is infringing (or de minimis), one need only analyze the original, sampled work - not the new work in which the sample was used.  This is significant because, as noted above, in many instances a single sample may be used several times in a work (or may be even looped throughout the new work).  Under Newton, if the sample is an insignificant part of the original work, it does not matter how many times the sample is used in the new work.  
 

Second, Newton reaffirms that the critical distinctions between musical compositions and sound recordings apply with equal force in the context of sampling.  Thus, if the owner of a musical composition brings a claim for unauthorized sampling, courts must evaluate the claim only with reference to the musical composition at issue, and must “filter out” any elements contained in the sample that are distinctive to a particular recording of the musical composition.  Put another way, if an artist samples a few seconds from a popular recording without authorization, any claims by the owner of the musical composition are limited to the words and music contained in the sample - and not any of the particular sounds or performances contained in the recording.
 

Given the nearly infinite variety of potential music samples, a bright line test for when licenses are required for the use of a sample would be difficult to fashion.  However, while Newton does not purport to provide such an all-encompassing test, it does provide significant guidance for evaluating potential infringement issues to those involved in music sampling.