Newton v. Diamond
United States Court of Appeals for the Ninth Circuit
388 F.3d 1189 (2004), cert. denied, 545 U.S. 1114 (2005)
James Newton (plaintiff) composed and later performed the song "Choir," retaining the composition rights while assigning sound-recording rights to ECM Records. In 1992 the Beastie Boys (defendant) licensed the sound recording from ECM to sample in "Pass the Mic" but never obtained a license to the underlying musical composition from Newton. They looped a six-second, three-note segment from the recording's opening throughout the 4.5-minute song and two remixes; although Newton's own performance techniques made the recorded segment distinctive, the underlying written score's notation for that passage was minimal. Newton sued for infringement of his composition rights, and the district court granted the Beastie Boys summary judgment on originality and, alternatively, on the ground the use was de minimis.
Whether the unlicensed sampling of a musical composition is de minimis, and therefore non-infringing, where the appropriation would not be recognized by an average audience once the underlying composition is isolated from performance-specific elements.