Who speaks Latin anymore? Translating de minimis use for application to music copyright infringement and sampling.

• Author: Blessing, David S.

INTRODUCTION

James Newton (1) discovered that he was featured on the Beastie Boys' "Pass the Mic" (2) eight years after the song's release. (3) In fact, he learned of his music's unauthorized use and widespread distribution from a student in a class he taught at California State University, Los Angeles. (4) Newton's plunge into popular hip-hop music was limited to a six-second snippet of his song "Choir," (5) which the Beastie Boys looped over forty times to create the background for "Pass the Mic." (6) Newton composed and performed "Choir" on his 1982 album Axum. (7) The sample used by the Beastie Boys is a six-second segment in which Newton "fingers a 'C' above middle 'C' on the flute, while singing the same 'C,' ascending one-half step to a 'D-flat,' and descending again to the 'C." (8) Upon Newton's discovery of this use without consent, he sued the Beastie Boys, claiming that the use of this three-note sample amounted to an infringement of the copyright in his work. (9)

Although prior to using the sample the Beastie Boys secured a license from ECM, the recording company that possessed the rights to Newton's recording, (10) they did not notify Newton of their intended use or obtain a license in the composition from him. (11) The U.S. District Court for the Central District of California, in May 2002, ruled in favor of the Beastie Boys, granting their motion for summary judgment. (12) The court reasoned that the Beastie Boys possessed a license for the sound recording, giving them a right to use it. (13) The court separately considered whether the Beastie Boys needed to obtain a license in the underlying composition. (14) The court only looked at the musical qualities actually represented in the written composition, and concluded that, in this case, the composition was qualitatively different from the sound recording. (15) The written composition did not note the "Newton technique' [or] ... mention ... overblowing the 'C' note," both techniques that made the recording distinct. (16) Thus, the copyright in the composition did not cover these added effects. (17) Here, the court found the use of the musical notes in the underlying composition to be de minimis because the sample was "so trivial" that it did not break the "quantitative threshold of substantial similarity." (18) Breaking this threshold is necessary for a finding that the defendant infringed the copyright in the composition. (19) Here, even though Newton controlled the rights in the composition, there was no "actionable copying" on which his suit could stand. (20)

This Note analyzes this finding of de minimis infringement and the tests courts use to make this determination. To begin, Part I of this Note describes the process of music sampling. Part II provides a background on copyright law. Part III discusses de minimis use and the tests courts apply to find de minimis use. This Part also describes how modern copyright law addresses music sampling by looking at the tests courts employ to rule on de minimis infringement. This analysis focuses on the determinations of substantial similarity used in the Second and Ninth Circuits. Specifically, this analysis includes the recent application of these tests in the Ringgold v. Black Entertainment Television (21) and Sandoval v. New Line Cinema Corp. (22) cases from the Second Circuit, and the McCulloch v. Albert E. Price, Inc. (23) case from the Ninth Circuit. Other tests exist, but are used infrequently by courts and are more difficult to apply to sampling due to the peculiarities of music. (24) Even translating the "abstractions" test of the Second Circuit (25) and "total concept and feel" test of the Ninth Circuit (26) into the arena of music sampling poses many problems. The vague nature of these tests allows them to be applied more readily to music than other tests, but that nature also means the standard for defining de minimis infringement is weak and wavering. Finally, Part IV of this Note addresses these problems and suggests a new test that is intended to achieve more accurately the goals of copyright law and to offer a better-defined standard for its practical application. (27)

Because the issue is bound to arise again, this Note asks and proposes to answer what would have happened had the Beastie Boys not secured a license in the recording of the work, so that the question of copyrighting the recording would have remained in Newton. This Note applies each of the tests to this hypothetical situation and determines the most effective method of handling music sampling infringement cases. Because, as this Note concludes, that none of the current tests furthers the purposes of copyright law, the courts should formulate a new test that furthers the purpose of copyright law and can be clearly applied.

1. WHAT IS DIGITAL MUSIC SAMPLING?

   1. Overview of Digital Music Sampling

      Digital music sampling is the practice of using previous sound recordings to create new music. (28) This process provides an inexpensive avenue for an artist to produce distinctive sounds and "offers a sound that may already have a proven appeal with the public." (29) Digital music sampling is a process that consists of "three steps: digital recording, computer sound analysis, and playback." (30) Vibrations that create sound can be represented by analog waves. (31) A digital sampler can receive these waves and transfigure them as computer code. (32) Modern equipment can copy and manipulate these digital computer codes to change pitch, tempo, and timbre, and make numbers of other alterations. (33) This technology provides "endless possibilities;" and, these possibilities make it difficult to determine how much of the new expression should be attributed to the original work and how much is created by the person utilizing this technology. (34) Obviously, the technology involved in this process and the mixing between old and new works makes music sampling copyright questions very difficult determinations for courts to make.

      Digital sampling began on a widespread basis when the digital MIDI synthesizer came on the market in 1981. (35) This innovation gave anyone with enough money to purchase the equipment the ability to digitally record, alter, and play back sound recordings. (36) As the price of the equipment declined, more people were able to take advantage of this technology, and sampling became more widespread. (37) Today, popular music is filled with artists who rely on this technology.

   2. Examples of Digital Sampling in Popular Music

      Examples of digital sampling in popular music are numerous. The controversial method of creation burst onto the public radar when Vanilla Ice's "Ice, Ice, Baby" rose to number one on Billboard Music's Top 40 chart with a sampled background beat from Queen and David Bowie's "Under Pressure." (38) In his song "I Need a Haircut," Biz Markie's sampling from a Gilbert O'Sullivan song gave the courts an early opportunity to address the matter of digital sampling. (39) The court's attitude was obvious from the opening line of their opinion--"Thou shalt not steal," the court quoted from the Ten Commandments. (40) Surely digital sampling and its complicated relationship with copyright law merits more than this simplistic response. (41)

      Still, digital music sampling continues to be heard in all styles of popular music. Rap music has often been cited for its heavy reliance on music sampling. (42) However, other popular styles (such as rock music) have also relied on borrowing to spur creation. (43) Today, the increased popularity of hip-hop and rap music has meant increased public exposure to music sampling. (44)

2. BACKGROUND OF COPYRIGHT LAW

   1. History of Copyrights

      Article I, Section 8, Clause 8 of the U.S. Constitution grants Congress the power to enact copyright legislation. (45) It authorizes Congress "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (46) In 1790, Congress first utilized this authority to protect creative works by adopting a federal Copyright Act. (47) Since its inception, Congress has amended the Copyright Act several times. (48)

      The Copyright Act of 1976 is the most recent comprehensive revision to the Act. (49) This Act states that the owner of the copyright has the exclusive right to reproduce the work, prepare derivative works, distribute copies of the work publicly, perform the work publicly, display the work publicly, and in the case of sound recordings, perform the work publicly by means of a digital audio transmission. (50) The Copyright Act of 1976 grants copyright protection to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." (51)

   2. Purpose of Copyrights

      As stated in the Constitution, the purpose of copyright law is "[t]o promote the Progress of Science and useful Arts." (52) Copyrights are not ultimately intended to reward the creator, but to encourage public benefits. (53) The reward often felt by the creator is an effect rather than a purpose of the law; this reward is seen as the most effective means to secure this public benefit. (54) In Fox Film Corp. v. Doyal, (55) the Supreme Court stated that, "[t]he sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors." (56) Thus, copyrights are meant to encourage creativity rather than to limit usable expression. (57) The laws have tried to forge a balance between allowing the public to benefit and use the artistic expression, and protecting the rights of the creator sufficiently to encourage the creation. "Implicit in this rationale is the assumption that in the absence of such public benefit, the grant of...