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De Minimis use in Copyright Music law

Posted by Steve Vondran | Aug 11, 2019 | 0 Comments

The 9th Circuit Court and Music Copyright Infringement – De Minimis Exception.  Also, "technical violations" (de minimis no defense in photo infringement case).  

VIDEO:  Watch Attorney Steve® explain this important Music Law concept.


Today's music industry, like many others, uses fragments of earlier works to create new interesting sounds and songs. Without this ability, many music producers would not be able to create what they see as their vision. Although through this process of nearly surgical level dissection and then replacement of certain sounds, copyright ownership challenges can arise. This blog post will describe two dominant cases that have shaken the system, answer prevalent questions, and discuss what may lie in the future for the legal system and music producers. 

Definitions & Background Knowledge

  • De Minimis: A Latin expression meaning “about minimal things”, which is a prominent legal term in United States tax and copyright law.
    • In the context of copyright laws, the de minimis rule or exception means that the court will not impose liability upon an unauthorized appropriator of copyrighted material if it can be determined that the average viewer or listener cannot recognize the appropriation.
  • Sampling: the actual physical copying of sounds from an existing recording for use in a new recording, even if accomplished with slight modifications such as changes to pitch or tempo.
    • Music producers may sample for a number of reasons such as lower production costs, using well-known sounds or cords to gain recognition with the audience, or just for an appealing addition to their composition.
    • Many artists, notably hip-hop, electronic, and pop musicians, use small snippets from other songs in the song they're producing. Kanye West is one of the most prominent producers in the industry that frequently uses older interesting songs as hooks in his music. For an example the song “Famous” by Kanye West featuring Rihanna has three unique samples, give it a listen and see if you can pick out the samples.
  • What are the Circuit Courts of Appeals?
    • In total there are 13 Federal Courts of Appeals in the United States, one for each of the 12 geographical regions (also known as circuits) and 1 for the Federal Circuit. The U.S. Court of Appeals for the Federal Circuit does not have a geographical region and therefore takes cases from across the nation, but has a particular set of requirements that must be met for a case to be heard.
    • The two cases that this blog is covering take place in the Sixth and Ninth Circuit Court(s) of Appeals.

The Split

  • From 2005 all the way until 2016 the Sixth Circuit Court of Appeals had set the precedence on this topic of “get a license or do not sample” in the court case Bridgeport Music, Inc. v. Dimension Films. The court recognized that absolutely no unauthorized copying of sound recording, regardless of triviality or size, legal.
    • Prior to this courts' decision, there was the long-standing premise of only complete and entire copying or substantial copying can back infringement. There are limitations on the rights of a copyright holder of a sound recording in copyright laws.
  • In 2016 a case came across the desk of the Ninth Circuit Court of Appeals by the name of VMG Salsoul, LLC v. Ciccone. Instead of going the way of the precedence set by the Sixth Circuit Court the Ninth Circuit Court decided to take their own route.
    • The copyright infringement in question involved Madonna's hit song “Vogue” which featured a sample from The Salsoul Orchestra's song “Ooh I Love It (Love Break)”. The 0.23-second “horn hit” sample occurs once in the original version of Madonna's “Vogue” and twice in the radio edit version of the same song. The court has determined that the producer of “Vogue” had copied the “horn hit” from “Ooh I Love It (Love Break)” so the question turned to:
      • whether the amount of copying was de minimis,
      • whether de minimis applies to sound recordings, and
      • whether the previous district court had made the correct call in awarding attorneys fees to the defendants.
        • To better understand the Ninth Circuit Courts' reasoning one must know that in 2004 in the case of Newton v. Diamond the court held that the de minimis exception applied to musical compositions. This answers question number 2.
        • In the Newton v. Diamond case the court came up with a test of “ use is de minimis only if the average audience would not recognize the appropriation”. In the case of VMG Salsoul, LLC v. Ciccone it is apparent that the average listener could not tell due to the short length, modifications made by the “Vogue” producer, and the plaintiff's primary expert had misidentified the “double horn hit” in the original song when it was created by the producer of “Vogue”. This answers question number 1.
        • The Ninth Circuit vacated the attorneys' granted to Madonna and her co-defendants while stating “plainly is reasonable to bring a claim founded on the only circuit-court precedent to have considered the legal issue, whether or not our circuit ultimately agrees with that precedent.” This answers question number 3.

Analysis of the Split

  • To better understand the differences between the outcomes of these two cases I will use a hypothetical example. Let's say a local used bookstore copies a single sentence from Philip Kerr's famous book Metropolis. If the copyright holder of Metropolis were to take this unauthorized use by the bookstore to court in the Sixth Circuit one can assume that the bookstore will be liable of infringement. Furthermore, if the bookstore had only used a single word from the book such as “detective” from page 130 it would still be seen as an infringement. Whereas, if the same case was brought in front of the Ninth Circuit it would not be seen as infringement since the average audience would not know that the word “detective” came from Metropolis.
  • The reason for this variance in understanding Title 17 of the United States Code, which handles copyright protection, comes from the courts logic when interpreting.

Resolution of Circuit Split

  • Statutory interpretation was the primary method of decision-making for both VMG Salsoul, LLC v. Ciccone and Bridgeport Music, Inc. v. Dimension Films so this is likely the starting place for a resolution.
  • The issues surrounding de minimis in the context of sound recordings and sampling within copyright law will continue being problematic until either congressional action or U.S. Supreme Court action takes place to create an efficient and clearly defined ruling.

What does this mean for the music industry?

  • Since the possibility of congressional or Supreme Court action is unlikely in the foreseeable future here is what these court decisions mean for the music industry now.
  • There is an incentive for copyright holders seeking redress for unauthorized sampling in the Sixth Circuit and an incentive for samplers to seek a judgment of non-infringement in the Ninth Circuit.
  • To avoid any sort of issue it is advisable that a producer obtains a license or another form of allowance from the originator of the sound recording being used.
LA music lawyer

September 2021 Update:  Bell vs. Willmott Storage Services (Indianapolis Skyline case). D.C. No. 2:18-cv-07328- CBM-MRW

Click here to view the case on Justia.

This is the case of the Indianapolis Skyline photo infringement on a website.  Plaintiff alleged copyright infringement and Defendant was not aware of it as he merely bought the rights to the website.  The Plaintiff had filed many other lawsuits over this photo, and Defendant argued any infringement was negated due to "De Minimis" use and fair use.  The lower court agreed and the Plaintiff appealed.  On appeal, the United States 9th Circuit court of appeals reversed basically holding that deminimis use was not a per se defense, but that on remand to the lower district court, this should be considered as part of assessing the appropriate statutory damages award.  Here are some key holdings from the case:

1.  Copyright law is "strict liability" offense - the lack of volitional act is not a defense - "Wilmott's conduct was plainly “volitional” in the proximate cause sense. Wilmott hosted the Indianapolis photo on its servers in a manner that was accessible to the public. Although Wilmott plausibly claims it did not know of the Indianapolis photo's presence on the server until Bell's first notice to the company, its negligence is nonetheless sufficient. Here, did not merely function as an online platform where third-party users independently upload and share materials, see Giganews, 847 F.3d at 666, but rather a website managed (and updated) by Wilmott itself, which included the data then stored on the website's servers, including the Indianapolis photo, cf. VHT, 918 F.3d at 734. As a result, Wilmott's actions assuming responsibility for and maintaining the server are clearly “the most important cause[s]” of the public display of the Indianapolis photo. Giganews, 847 F.3d at 666 (citation omitted). Wilmott's conduct is therefore plainly volitional for purposes of copyright infringement. Whether Wilmott intended to infringe Bell's copyright is ultimately immaterial—“the innocent intent of the defendant constitutes no defense to liability.” 4 Nimmer on Copyright § 13.08[B][1]; see also 3 Patry on Copyright § 9:5. 

“[T]he word ‘volition' in [the copyright] context does not really mean an ‘act of willing or choosing' or ‘an act of deciding,'” but merely “the unremarkable proposition that proximate causation historically underlies copyright infringement liability no less than other torts.” Giganews, 847 F.3d at 666 (quoting 4 Nimmer on Copyright § 13.08[C][1]). Indeed, copyright infringement is a strict liability tort. See 3 Patry on Copyright § 9:5; 4 Nimmer on Copyright § 13.08[B][1] (explaining that “the innocent intent of the defendant constitutes no defense to liability”). Courts determine “who is close enough to the [infringing] event to be considered the most important cause.” Giganews, 847 F.3d at 666 (alteration in original) (citation omitted). We have held that a website or service that provides only a platform for third-party users to upload, download, and share content, i.e., merely using the platform as a vehicle, has not engaged in volitional conduct in this sense, because it is the users who cause infringement. See id. at 669 (holding that “passively storing material at the direction of users in order to make that material available to other users upon request” is not infringement (citation omitted)); see also Am. Broad. Cos. v. Aereo, Inc., 573 U.S. 431, 438–39 (2014) (distinguishing liability for those who transmit protected works and those who “merely suppl[y] equipment that allows others to do so”)

2.  No de minimis use exception to infringement:  We reject Wilmott's “technical violation” theory of a de minimis defense adopted by the district court. The district court found that Wilmott's infringement was “technical,” that Wilmott was unaware that it was violating Bell's exclusive copyright in the Indianapolis photo, and that it did not intentionally “use[]” the photo. But holding that a de minimis defense was sustainable to defeat Bell's claims is not the answer to these troubling facts. Rather, the statutory law of copyright itself supplies the answers to these questions. “Copyright ‘is a creature of statute, and the only rights that exist under copyright law are those granted by statute.'” Corbello v. DeVito, 777 F.3d 1058, 1064 (9th Cir. 2015) (quoting Silvers v. Sony Pictures Ent., Inc., 402 F.3d 881, 883–84 (9th Cir. 2005) (en banc));

Yet nowhere in the Act's numerous and detailed provisions is there any exception for the de minimis use of a concededly infringing work, i.e., for a “technical violation.” The Act defines a copyright infringer as “[a]nyone who violates any of the exclusive rights of the copyright owner.” Id. § 501(a) (emphasis added).  “[W]here an unauthorized material use of a copyrighted work does fall within one of those [exclusive] rights, infringement occurs, unless the use is excused by one of the privileges, exemptions, or compulsory licenses found in sections 107 through 122.”10 William F. Patry, 3 Patry on Copyright § 9:2 (2020 ed.).

Thus, the de minimis analysis is best thought of in terms of the substantiality of the copying, to delineate the boundary between actionable and non-actionable copying. Our long line of precedent and that of the majority of our sister circuits supports the application of the de minimis principle in copyright only to questions of substantial similarity (and potentially fair use), i.e., whether there was de minimis copying of the protected work so as to be non-recognizable as a copy. Wholesale copying or reproduction of another's protected work, like the Indianapolis photo, by definition cannot be de minimis copying

3. Court (suggests) innocent infringement damages is possible on remand - "However, our holding does not mean that an infringer's innocent intent and technical use of the infringing work are irrelevant. The Act also accounts for the culpability of the infringer, distinguishing willful from innocent infringement by limiting the statutory damages that can be imposed against the latter. See Id. § 504(c)(2); Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980, 991 (9th Cir. 2017).13 Thus, any concern that the de minimis doctrine is needed to protect “accidental” or unwitting infringement, a concern that appears to be shared by the district court, is also addressed by the Act, which provides that where an “infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright,” the court may reduce statutory damages to as little as $200." 17 U.S.C. § 504(c)(2).

New copyright small claims court discussed - This conclusion is further strengthened by the recent enactment of the Copyright Alternative in Small-Claims Enforcement (“CASE”) Act, which establishes a Copyright Claims Board within the Copyright Office to create a cost-effective administrative venue for litigating “small claims” of copyright infringement as an alternative to federal courts. See 17 U.S.C. §§ 1501–11.


Sampling of songs and other forms of sound recordings has become incredibly prominent within the music industry with no end in sight. As a music producer, it may seem like this is a massive setback for their vision but it is not if the sampling is done within certain parameters. Laws just like music will continue to evolve and change over time as new ideas are brought forth, changes in taste occur, and technology advances.

Contact a California Music Law Firm

We can be reached at (877) 276-5084 or by emailing us through our contact form.  We can help review music agreements, and help with copyright registration, licensing, royalty disputes and other copyright infringement matters including arbitration and mediation and federal court litigation.  We have appeared in over 100+ federal court copyright infringement cases.

Blog written by Tomas Braly Texas A&M graduate

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337


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