Newton

Opinion by Chief Judge SCHROEDER. Dissent by Judge GRABER.

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 defendants, the performers who did the sampling, are the members of the musical group Beastie Boys. They obtained a license to sample the sound recording of Newton’s copyrighted performance, but they did not obtain a license to use Newton’s underlying composition, which is also copyrighted.

The district court granted summary judgment to the defendants. In a scholarly opinion, it held that no license to the underlying composition was required because, as a matter of law, the notes in question — C-D flat — C, over a held C note — lacked sufficient originality to merit copyright protection. Newton v. Diamond, 204 F.Supp.2d 1244, 1256 (C.D.Cal.2002). The…

dissenting:

I respectfully dissent. The majority has laid out correctly the legal principles that apply in this ease, and I agree with the majority’s assumption that the sampled portion of “Choir” qualifies as “original” and therefore is copyrightable. Maj. op. at 594. However, on the record before us, a jury 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 482 , 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 jury 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 recognize the sampled…