Newton v. Diamond

Opinion by Chief Judge SCHROEDER; Dissent by Judge GRABER.

ORDER AMENDING OPINION AND DENYING REHEARING AND AMENDED OPINION AND AMENDED DISSENT

ORDER

The Opinion filed on November 4, 2003, is hereby amended. The clerk shall file the attached Amended Opinion.

With this Amended Opinion, the panel has voted unanimously to deny the petition for panel rehearing and petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to hear the matter en banc. Fed. R.App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing will be entertained.

OPINION

This appeal raises the difficult and important issue of whether the incorporation of a short segment of a musical recording into a new musical recording, i.e., the practice of “sampling,” requires a license to use both the performance and the composition of the original recording. The particular sample in this case consists of a six-second, three-note segment of a performance of one of his own compositions by plaintiff, and accomplished jazz flutist, James W. Newton. The…

dissenting:

I respectfully dissent. The majority has laid out correctly the legal principles that apply in this case, and I agree with the majority’s assumption that the sampled portion of “Choir” qualifies as “original” and therefore is copyrightable. Maj. op. at 1192. However, on the record before us, a finder of fact reasonably could find that Beastie Boys’ use of the sampled material was not de minimis. Therefore, summary judgment is inappropriate.

As the majority observes, a use is de minimis only if an average audience would not recognize the appropriation. Fisher v. Dees, 794 F.2d 432 , 434 n. 2 (9th Cir.1986). The majority is correct that James Newton’s considerable skill adds many recognizable features to the performance sampled by Beastie Boys. Even after those features are “filtered out,” however, the composition, standing alone, is distinctive enough for a fact-finder reasonably to conclude that an average audience would recognize the appropriation of the sampled segment and that Beastie Boys’ use was therefore not de minimis.

Newton has presented evidence that the compositional elements of “Choir” are so compositionally distinct that a reasonable listener would…

388 F.3d 1189 James W. NEWTON, Jr., dba Janew Music, Plaintiff-Appellant, v. Michael DIAMOND; Adam Horowitz; Adam Yauch, dba Beastie Boys; Capitol Records, Inc., a Delaware Corporation; Grand Royal Records, Inc., a California Corporation; Universal Polygram International Publishing, Inc., a Delaware Corporation; Brooklyn Dust Music, an entity of unknown origin; Mario Caldato, Jr., an individual; Janus Films, LLC, a New York Limited Liability Company; Criterion Collection, a California Partnership; Voyager Publishing Company, Inc., a Delaware Corporation; Sony Music Entertainment Group, a Delaware Corporation; BMG Direct Marketing, Inc., a Delaware Corporation; The Columbia House Company, an entity of unknown origin, Defendants-Appellees. No. 02-55983. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 7, 2003. Filed November 4, 2003. Amended November 9, 2004. Alan Korn, Law Offices of Alan Korn, Berkeley, CA, for the plaintiff-appellant. Adam F. Streisand and David C. Nelson, Loeb & Loeb, LLP, and Barry E. Mallen, Manatt, Phelps & Phillips, LLP, Los Angeles, CA, for the defendants-appellees. Todd M. Gascon, Law Offices of Todd M. Gascon, and Sarah…