Friday, September 10, 2010

Sampling and Sound Recordings: The De Minimis Defense

Dear Rich: I'm a music publisher and I readNewton v. Diamond in which the Beastie Boys were able to sample a flute recording without getting permission from the composer. Does this case really say conclusively that a master rights holder can license the recording of a composition and be compensated for it, while a de minimis use of the composition contained in that same master recording can be sampled for free? Really?? Must we wait for the Supreme Court to weigh in on sticky copyright nuances? Or is case law (regardless of how disturbing) enough to put a given issue to bed? Uh... we're not so sure a Supreme Court decision on issues like sampling will do anybody much good. They rarely seem to get copyright right and somehow we just can't imagine Justice Scalia appreciating the nuances generated by two turntables and a microphone
What does the case say?  As you know in order to use a sample, you must obtain permissionfrom the owner of the sound recording copyright and the owner of the musical composition copyright. The Beastie Boys got permission from the sound recording owner (ECM Records) but not from the composition's owner (Newton). The Beasties used the three note intro from Newton's work repeatedly throughout the song, "Pass the Mic." The Ninth Circuit ruled that permission is not needed from the owner of a composition if what is taken is de minimis (so little).
What is a de minis defense? De minimis is not the same as fair use. For example, in the motion picture Seven, several copyrighted photographs appeared in the film, prompting the copyright owner of the photographs to sue the producer of the movie. The court held that the photos "appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable." The court excused the use of the photographs as "de minimis." (Sandoval v. New Line Cinema Corp.) However, in another case, a court determined that the use of a copyrighted poster for a total of 27 seconds in the background of the TV show, "Roc" was not de minimis. What distinguished the use of the poster from the use of the photographs in the Seven case? The court stated that the poster was clearly visible and recognizable with sufficient observable detail for the "average lay observer " to view the artist's imagery and colorful style. (Ringgold v. Black Entertainment Television), So one of the biggest challenges in making the de minimis argument is that each situation is decided on a case-by-case basis. There's no predicting whether it will work.
Does this mean that musicians should feel free to take three note patterns from recordings provided they pay the owner of the sound recording? The Dear Rich staff would advise against that practice (unless of course you're the Beastie Boys and you can afford to fight the battle). Otehrwise, you'll probably spend more on legal fees than you would for sampling rights. De minimis defenses, like fair use defenses, are never a guaranteed determination and only a federal judge can tell you for certain who is right. So, to that extent, we believe cppyright law still favors music publishers. 
(BTW, Malcolm Gladwell wrote a good article about this case and NPR ran an informative show, as well.)