News

9th Circuit Rules on Sampling

Glenn Otis Brown, November 5th, 2003

The U.S. Court of Appeals for the 9th Circuit (in California) ruled yesterday that the Beastie Boys’ sampling of a three-note segment of James Newton’s composition to the song “Choir” did not infringe Newton’s copyright. The court ruled that the sample was a “de minimis” — or trivial — instance of copying and thus not a violation.

A few things to note here.

First is to point out the distinction between sound recordings and their underlying compositions. These are separate copyrights and are often owned by different entities. Here, Newton transferred his right in the recording of “Choir” to ECM Records in 1981; ECM later sold the Beastie Boys a license to sample from the recording.

Newton held on to his right in the underlying composition, however — and it was this right that was at stake in this case. Because the pattern of notes used by the Beastie Boys was a pretty generic and very short three-note sequence, the court said “no foul.”

Now, the court did not rule that bands who sample needn’t bother clearing rights to both recordings and compositions as a general matter. The court implies that had the Beastie Boys sampled some more distinctive pattern of notes — distinctive not in their recording, but in their abstract ordering — or had they taken more of those notes, they would have violated Newton’s copyright in the composition.

So, the upshot: This is a moment in copyright law, if for no other reason than the court’s cool, rational approach to the question. The decision does the important duty of reminding us, in this time of copyright hysteria, that “[e]ven where there is some copying, that fact is not conclusive of infringement. Some copying is permitted. In addition to copying, it must be shown that this has been done to an unfair extent.” This is a basic principle of the law governing creativity that has been all but drowned out in recent years.

That said, this case doesn’t open the door to a free-for-all of creative appropriation. In other words, for artists who want to invite more than trivial uses of their stuff, who want to really open the floodgates of re-creativity, the future is in tools like our forthcoming Sampling Licenses.

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