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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

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

Introduction 

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.

Conclusion

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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