The U.S. Court of Appeals for the Sixth Circuit today has reaffimed the position that it first announced last year – that there is no “de minimis” rule when looking at the use of sound recordings as samples. Under the court’s latest ruling in even two notes sampled from a sound recording without permission would amount to copyright infringement. (The court acknowledged that taking one note probably would not amount to infringement, since copyright law defines a sound recording as “the fixation of a series of musical, spoken, or other sounds.”) The case involves a two-second, three-note guitar riff sampled from the song “Get Off Your Ass and Jam,” which was changed in pitch and “looped” into another song, “100 Miles.” “100 Miles” was used in the soundtrack of a movie and the moviemakers were the defendants in the case. A federal trial court ruled that the copying was de minimis and therefore not actionable under copyright law. The Sixth Circuit reversed this decision last year, but then agreed to grant “rehearing.” It has decided not to change its stance.
For Comment see: http://www.fepproject.org/news/bridgeport.html and see :http://www.musicjournal.org/03thesongremainsthesame.html
UPDATE Newton v Diamond and Others (2004) 04-0129
In a similar decision the 9th Circuit US Court of Appeals upheld the judgment of then lower court against jazz artist James W Newton who contended that the Beastie Boys had infringed the copyright in his composition by unauthorized use in their recording ‘Pass The Mic’ The band had secured a licence to use the sound recording of Newton’s track ‘Choir’ but the band did not licence the use of the composition in the six second three note sample. The Courts agreed with the Beastie Boys reasoning that the use of the actual composition was not distinctive enough to infringe Newton’s copyrights.