Newton V. Diamond: When a Composer's Market Is Not the Average Joe: the Ni Adequacy of the Average-Audience Test Reid Miller
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Golden Gate University Law Review Volume 36 Article 3 Issue 1 Ninth Circuit Survey January 2006 Newton v. Diamond: When a Composer's Market Is Not the Average Joe: The nI adequacy of the Average-Audience Test Reid Miller Follow this and additional works at: http://digitalcommons.law.ggu.edu/ggulrev Part of the Intellectual Property Law Commons Recommended Citation Reid Miller, Newton v. Diamond: When a Composer's Market Is Not the Average Joe: The Inadequacy of the Average-Audience Test, 36 Golden Gate U. L. Rev. (2006). http://digitalcommons.law.ggu.edu/ggulrev/vol36/iss1/3 This Note is brought to you for free and open access by the Academic Journals at GGU Law Digital Commons. It has been accepted for inclusion in Golden Gate University Law Review by an authorized administrator of GGU Law Digital Commons. For more information, please contact [email protected]. Miller: Inadequacy of the Average-Audience Test NOTE NEWTON v. DIAMOND: WHEN A COMPOSER'S MARKET IS NOT THE AVERAGE JOE: THE INADEQUACY OF THE A VERAGE AUDIENCE TEST INTRODUCTION In 1978, avant-garde jazz flautist and composer James Newton composed "Choir," a song inspired by his early memory of four women singing gospel church music in rural Arkansas. I "Choir" is not a traditional song. 2 In addition to its gospel music influence, "Choir" contains elements of Japanese ceremonial court music, classical music, and African music? The most untraditional sonic characteristics of the song, however, are achieved by playing the flute in a very unorthodox manner.4 The song requires that the performer play one note on the flute by over-blowing into the instrument while simultaneously singing a pattern of three other notes.5 The effect of this simultaneous over blowing and singing is a unique sound that is described as multiphonics.6 I Newton v. Diamond, 388 F.3d 1189, 1191 (9th Cir. 2004). 2 See generally, Petition For Writ Of Certiorari, Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2004) (No. 04-1219). 3 [d. at 3-4 (citing Appellant's excerpts of record filed in the Ninth Circuit on September 30, 2(02). 4 See Newton v. Diamond, 388 F.3d 1189, 1194 (9th Cir. 2004). 5 [d. at 1191. 6 [d. I Published by GGU Law Digital Commons, 2006 1 Golden Gate University Law Review, Vol. 36, Iss. 1 [2006], Art. 3 2 GOLDEN GATE UNNERSITY LAW REVrnW [Vol. 36 In Newton's "Choir," this effect sounds something like the wind blowing briskly through the trees. Three years after composing the song, Newton performed and recorded "Choir.,,7 At that time, he licensed all rights in that sound recording of "Choir" to ECM Records for $5,000.8 However, Newton retained the copyright to the underlying composition of "Choir," as embodied in his written score of the song.9 In 1992, the Beastie Boys sampled a six-second portion of "Choir" in the recording of their song, "Pass The Mic.,,10 At that time, the Beastie Boys obtained a license from ECM Records to use portions of the sound recording of "Choir" for a one-time fee of $1,000." However, the Beastie Boys did not obtain a license from Newton for use of the underlying composition of "Choir.,,12 As a result, Newton brought an action against the Beastie Boys in 2000 for copyright infringement of his composition "Choir.,,13 In Newton v. Diamond, the Court of Appeals for the Ninth Circuit granted summary judgment in favor of the Beastie BoYS.14 The decision of the court was based on the sole ground that the Beastie Boys' unauthorized use of a sample of Newton's composition was trivial and therefore not significant enough to constitute infringement. 15 The court determined the sample's triviality by concluding that the average audience would not recognize Newton's hand as the composer of the Beastie Boys' sample. 16 This analysis is called the average-audience test, where an unauthorized use will be considered so trivial as to avoid legal consequences if an average audience would not recognize that a 7 Id. sId. 9 Id. 10 Newton v. Diamond, 388 F.3d 1189, 1191 (9th Cir. 2004); See also id. at 1190 (describing sampling as "the incorporation of a short segment of a musical recording into a new musical recording .... "); See also Jarvis v. A & M Records, 827 F. Supp. 282, 286 (D.N.J. 1993) (describing sampling as "the conversion of analog sound waves into a digital code. The digital code that describes the sampled music . can then be reused, manipulated or combined with other digitalized or recorded sounds using a machine with digital data processing capabilities, such as a .. computerized synthesizer." (quoting Judith Greenberg Finell, How a Musicologist Views Digital Sampling Issues, 207 N.Y.LJ. 7, n.3 (May 22, 1992»; See also http://en.wikipedia.orglwikilBeastie_Boys (describing the Beastie Boys as "an American hip-hop group from New York City."). II Newton, 388 F.3d at 1191. 12 Id. 13 Newton v. Diamond, 204 F.Supp.2d 1244, 1247 (C.D.Cal. 2002). 14 Newton v. Diamond, 388 F.3d 1189, 1190 (9th Cir. 2004). 15 Id. 16 Id. at 1196. http://digitalcommons.law.ggu.edu/ggulrev/vol36/iss1/3 2 Miller: Inadequacy of the Average-Audience Test 2006] INADEQUACY OF THE AVERAGE-AUDIENCE TEST 3 copying has occurred. 17 This Note will discuss how the Ninth Circuit incorrectly adopted the average-audience test because the test has become overbroad in its application, is ill-equipped to deal with the issues of complex modem music, and has drifted from the fundamental purpose of copyright law. The Ninth Circuit should have adopted the intended-audience test, which looks to the reaction of those with the expertise required to understand the language of the work and more truly reflects the fundamental purpose of copyright law: the protection of the creator's market. 18 Part I of this Note will discuss the relevant background as it relates to the average-audience test. 19 Part II will examine the legal foundation that the Newton court relied on in its opinion.2o Part III will discuss the Newton court's analysis of the case in light of the legal foundation it established?1 Part III will also discuss the dissenting opinion in Newton?2 Part IV will examine a different approach taken by the courts by focusing on the Fourth Circuit's adoption of the more focused intended-audience test. 23 Part V will reconsider the development of the average-audience test in the Ninth Circuit and compare the Ninth Circuit's reasoning to that of the Fourth Circuit. 24 Part VI will consider the benefits and burdens of the intended-audience test as practically applied?5 Finally, Part VII will conclude that the Ninth Circuit failed to clarify the law by adopting the average-audience test, and should have adopted the intended-audience test.26 I. BACKGROUND Congress's power to grant copyright was founded on an economic incentive theory?? Because a musician's financial gain is a direct result of the public's approbation of his or her work, the best way to stimulate the arts for the benefit of the general public is through the encouragement of individual effort through personal financial gain.28 As a result, courts 17 Fisher v. Dees, 794 F.2d 432,434 (9th Cir. 1986). 18 See infra notes 93-114 and accompanying text. 19 See infra notes 27-38 and accompanying text. 20 See infra notes 39-52 and accompanying text. 21 See infra notes 53-81 and accompanying text. 22 See infra notes 82-92 and accompanying text. 23 See infra notes 93-114 and accompanying text. 24 See infra notes 115-128 and accompanying text. 25 See infra notes 129-146 and accompanying text. 26 See infra notes 147-151 and accompanying text. 27 See, e.g., Mazer v. Stein, 347 U.S. 201, 219 (1954). 28 Arnstein v. Porter, 154 F.2d 464,473 (2d Cir. 1946); See, e.g., Mazer. 347 U.S. at 219. Published by GGU Law Digital Commons, 2006 3 Golden Gate University Law Review, Vol. 36, Iss. 1 [2006], Art. 3 4 GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 36 concluded that the impression of the general public, or lay listener, was the best method to determine infringement of a protected work.29 This sound foundational logic led to the development of the average-audience test, which looks to the reaction of the ordinary lay listener to determine whether an unauthorized use of a copyrighted musical work is sufficiently substantial to be considered infringement.3o The modern musical language is extremely diverse?l Today's musical vernacular includes such distinct genres as avant-garde jazz, minimalism, hip-hop, electronica, and microtonal music.32 Further, concurrent advances in technology have enabled a new generation of musicians to create music in new forms using their home computer.33 This diversity of musical idioms and advance in technology have created a complexity to the modern musical language that challenges what is defined as popular music.34 Because popular music is not as easily defined as it once was, some courts have reconsidered the relevance of the average-audience test in light of the logic upon which it was developed?5 The Fourth Circuit, for example, has chosen to adopt the intended-audience test.36 This test focuses not on the reaction of the ordinary lay listener, but rather a listener who fairly represents that work's intended aUdience. 37 While other courts have adopted a more 29 Arnstein, 154 F.2d at 473.