Newton fails in appeal against the Beastie Boy’s unauthorised use of song melody, Newton v Diamond

December 2004

Record Labels, Music Publishing, Artists

Jazz flutist James W. Newton has again failed in his action against the Beastie Boys as a federal court in San Francisco denied for a third time his copyright infringement claim against the band and various distributors of the rappers’ 1992 recording “Pass the Mic.” The suit, filed in Central District Court in Los Angeles in 2000, claimed that the sample infringed the Newton composition “Choir.” Although the Beastie Boys licensed Newton’s recording before releasing their song, they claimed the six-second sample of the underlying composition – consisting of only three notes – was too small to require a license under copyright law even though it was looped over 40 times in their song. The District Court agreed with the group, and granted summary judgment in 2002. Newton appealed, but the Ninth Circuit Court of Appeals also sided with the Beastie Boys in 2003. The court held that the amount of the composition sampled was too small to be unlawful; it was a lawful “de minimis” use. Newton petitioned the three-judge panel to reconsider its decision or to hold a rehearing en banc, with the participation of all active Ninth Circuit judges. In this latest ruling, the appellate court denied the request, but it also amended – and republished – its year-old opinion. According to the group’s attorney the changes in the opinion appear minimal and, if anything, strengthen the court’s original position. Meanwhile, in Nashville, the Sixth Circuit Court of Appeals has yet to decide whether it will reconsider its Sept. 7 decision involving N.W.A’s two-second sample of a Funkadelic recording. That court held that the “de minimis” sampling of a recording was copyright infringement even though the amount sampled was too small to infringe the underlying composition.
Westbound Records and Bridgeport Music v No Limit Films (September 2004)

COMMENT : This leaves the position in US law as follows: use of ANY part of a sound recording without permission will be a copyright infringement. However where a ‘tune’ is used without permission the test for copyright infringement of the musical copyright will be the subject to a ‘de minimum’ test – the use must satisfy a test of ‘substantial’ use or ‘identifiable’ use.

and see :

The full text of the Newton v Diamond judgment can be accessed via:$file/0255983.pdf?openelement

The full text of the Bridgeport Music v Dimension Films judgment can be accessed via:

See also Simkins Early Warnings (by Tom Frederikse) : 15 November 2004

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