NEWTON V. DIAMOND 591 Cite As 349 F.3D 591 (9Th Cir
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NEWTON v. DIAMOND 591 Cite as 349 F.3d 591 (9th Cir. 2003) Graber, Circuit Judge, dissented and James W. NEWTON, Jr., dba Janew filed opinion. Music, Plaintiff–Appellant, v. 1. Federal Courts O762 Michael DIAMOND; Adam Horowitz; Appellate court may affirm grant of Adam Yauch, dba Beastie Boys; Capi- summary judgment on any basis supported tol Records, Inc., a Delaware Corpora- by record, and need not reach each ground tion; Grand Royal Records, Inc., A relied upon by district court. California Corporation; Universal Po- lygram International Publishing, Inc., 2. Copyrights and Intellectual Property a Delaware Corporation; Brooklyn O66 Dust Music, an entity of unknown ori- Even if three-note sequence from au- gin; Mario Caldato, Jr., an individual; thor’s musical composition was sufficiently Janus Films, LLC, a New York Limit- original to warrant copyright protection, ed Liability Company; Criterion Col- hip-hop band’s sampling of sequence in its lection, a California Partnership; own song was de minimis, and thus not Voyager Publishing Company, Inc., a infringing; band had licensed author’s re- Delaware Corporation; Sony Music cording of composition and, though band Entertainment Group, a Delaware had looped sample throughout their song, Corporation; BMG Direct Marketing, it was neither quantitatively nor qualita- Inc., a Delaware Corporation; The tively significant portion of author’s com- Columbia House Company, an entity position. of unknown origin, Defendants–Ap- pellees. 3. Copyrights and Intellectual Property O53(1) No. 02–55983. For unauthorized use of copyrighted United States Court of Appeals, work to be actionable, there must be sub- Ninth Circuit. stantial similarity between protected and accused works, that is, copying must be Argued and Submitted April 7, 2003. substantial and not trivial. Filed Nov. 4, 2003. 4. Copyrights and Intellectual Property O53(1) Author of musical composition Copying of copyrighted work is de brought copyright infringement action minimis, and thus not actionable, only if it against alternative rock and hip-hop band. is so meager and fragmentary that aver- The United States District Court for the age audience would not recognize appro- Central District of California, 204 priation. F.Supp.2d 1244, Nora Margaret Manella, J., granted summary judgment of nonin- fringement, and author appealed. The Court of Appeals, Schroeder, Chief Judge, held that band’s sampling of three-note Alan Korn, Law Offices of Alan Korn, sequence from composition was de minim- Berkeley, CA, for the plaintiff-appellant. is. Adam F. Streisand and David C. Nelson, Affirmed. Loeb & Loeb, LLP, and Barry E. Mallen, 592 349 FEDERAL REPORTER, 3d SERIES Manatt, Phelps & Phillips, LLP, Los An- use Newton’s underlying composition, geles, CA, for the defendants-appellees. which is also copyrighted. Todd M. Gascon (argued), Law Offices The district court granted summary of Todd M. Gascon, San Francisco, CA, for judgment to the defendants. In a scholar- amici curiae Philip Glass, et al, in support ly opinion, it held that no license to the of plaintiff–appellant. underlying composition was required be- David M. Given and Sarah Sevier Farn- cause, as a matter of law, the notes in bach, Phillips, Erlewine & Given, LLP, question—C–D flat—C, over a held C San Francisco, CA, for the amici curiae DJ note—lacked sufficient originality to merit Shadow, et al., in support of defendants– copyright protection. Newton v. Dia- appellees. mond, 204 F.Supp.2d 1244, 1256 (C.D.Cal. Appeal from the United States District 2002). The district court also held that Court for the Central District of Califor- even if the sampled segment of the compo- nia; Nora M. Manella, District Judge. sition were original, Beastie Boys’ use was Presiding. D.C. No. CV–00–04909–NM. de minimis and therefore not actionable. Id. at 1259. We affirm on the ground that Before SCHROEDER, Chief Judge, THOMPSON, and GRABER, Circuit the use was de minimis. Judges. Background and Procedural History Opinion by Chief Judge SCHROEDER. The plaintiff and appellant in this case, Dissent by Judge GRABER. James W. Newton, is an accomplished avant-garde jazz flutist and composer. In SCHROEDER, Chief Judge: 1978, he composed the song ‘‘Choir,’’ a This appeal raises the difficult and im- piece for flute and voice intended to incor- portant issue of whether the incorporation porate elements of African–American gos- of a short segment of a musical recording pel music, Japanese ceremonial court mu- into a new musical recording, i.e., the prac- sic, traditional African music, and classical tice of ‘‘sampling,’’ requires a license to use music, among others. According to New- both the performance and the composition ton, the song was inspired by his earliest of the original recording. The particular sample in this case consists of a six-second, memory of music, watching four women three-note segment of a performance of singing in a church in rural Arkansas. In one of his own compositions by plaintiff, 1981, Newton performed and recorded and accomplished jazz flutist, James W. ‘‘Choir’’ and licensed all rights in the sound 1 Newton. The defendants, the performers recording to ECM Records for $5000. who did the sampling, are the members of The license covered only the sound record- the musical group Beastie Boys. They ob- ing, and it is undisputed that Newton re- tained a license to sample the sound re- tained all rights to the composition of cording of Newton’s copyrighted perform- ‘‘Choir.’’ Sound recordings and their un- ance, but they did not obtain a license to derlying compositions are separate works 1. In relevant part, the license reads as fol- TTTT lows: 3) The grant of rights according to section 1) [Newton] herewith grants, transfers and 1) especially, includes the rights to manu- assigns to ECM without limitations and re- facture in quantitiy [sic], to distribute, to strictions whatsoever the exclusive rights to license to others, as well as to perform the record his performances and to exploit recordings in public and to utilize it in these recordings in perpetuity throughout radio, TV, or in other ways without any the world in any manner whatsoever. restrictions. NEWTON v. DIAMOND 593 Cite as 349 F.3d 591 (9th Cir. 2003) with their own distinct copyrights. 17 would overlay with chanted or ‘scatted’ U.S.C. § 102(a)(2), (7). vocals. See Robert M. Szymanski, Audio The defendants and appellees include Pasitiche: Digital Sampling, Intermedi- the members of the rap and hip-hop group ate Copying, Fair Use, 3 U.C.L.A. Ent. L. Beastie Boys, and their business associ- Rev. 271, 277 (Spring 1996). Sampling ates. In 1992, Beastie Boys obtained a migrated to the United States and devel- license from ECM Records to use portions oped throughout the 1970s, using the ana- of the sound recording of ‘‘Choir’’ in vari- log technologies of the time. Id. The digi- ous renditions of their song ‘‘Pass the Mic’’ tal sampling involved here developed in in exchange for a one-time fee of $1000.2 the early 1980s with the advent of digital Beastie Boys did not obtain a license from synthesizers having MIDI (Musical Instru- Newton to use the underlying composition. ment Digital Interface) keyboard controls. These digital instruments allowed artists The portion of the composition at issue digitally to manipulate and combine sam- consists of three notes, C–D flat—C, sung pled sounds, expanding the range of possi- over a background C note played on the bilities for the use of pre-recorded music. flute. When played on the sound record- Whereas analog devices limited artists to ing licensed by Beastie Boys, the segment ‘‘scratching’’ vinyl records and ‘‘cutting’’ lasts for approximately six seconds. The back and forth between different sound score to ‘‘Choir’’ also indicates that the recordings, digital technology allowed art- entire song should be played in a ‘‘lar- ists to slow down, speed up, combine, and go/senza-misura’’ tempo, meaning ‘‘slow- otherwise alter the samples. See id. ly/without-measure.’’ Apart from an in- struction that the performer sing into the Pursuant to their license from ECM flute and finger simultaneously, the score Records, Beastie Boys digitally sampled is not further orchestrated. the opening six seconds of Newton’s sound The dispute between Newton and Beast- recording of ‘‘Choir.’’ Beastie Boys re- ie Boys centers around the copyright im- peated or ‘‘looped’’ this six-second sample plications of the practice of sampling, a as a background element throughout ‘‘Pass practice now common to many types of the Mic,’’ so that it appears over forty popular music. Sampling entails the incor- times in various renditions of the song. In poration of short segments of prior sound addition to the version of ‘‘Pass the Mic’’ recordings into new recordings. The prac- released on their 1992 album, ‘‘Check Your tice originated in Jamaica in the 1960s, Head,’’ Beastie Boys included the ‘‘Choir’’ when disc jockeys (DJs) used portable sample in two remixes, ‘‘Dub the Mic’’ and sound systems to mix segments of prior ‘‘Pass the Mic (Pt. 2, Skills to Pay the recordings into new mixes, which they Bills).’’ It is unclear whether the sample 2. In relevant part, the license reads as fol- James Newton (the ‘‘Sample’’); to embody lows: the sample in some or all versions of the [ECM Records], as owner of the applicable selection entitled ‘‘Pass the Mic’’ by the sound recording rights, including but not Beastie Boys (all versions of ‘‘Pass the Mic’’ limited to recording, reproduction, synchro- which contain the Sample are referred to as nization and performing rights, grants to the ‘‘Selection’’); to reproduce, distribute Beastie Boys, its licensees, assigns, employ- and otherwise exploit the Sample as part of ees and agents (the ‘‘Licensed Parties’’), the the Selection in all media, whether now irrevocable non-exclusive license and right known or hereinafter developed, including, to copy portions (if any) of the sound re- without limitation, all record formats cording entitled ‘‘Choir’’ performed by throughout the world in perpetuity.