Newton v. Diamond
388 F.3d 1189 (9th Cir. 2004)

  • Newton was a jazz musician who composed and recorded a song. He sold the rights to the sound recording to ECM. However, he retained the rights to the composition.
  • Years later, another band called the Beastie Boys (represented by Diamond) sampled three notes from Newton's song, and used them in a tape-loop for one of their songs. Diamond got the rights to the sound recording from ECM, but did not get any rights from Newton.
  • Newton sued for copyright infringement.
  • The Trial Court found for Diamond. Newton appealed.
    • The Trial Court found that a three-note sample was too short to be independently copyrightable, and even if it was, Diamond's use was de minimus.
  • The Appellate Court affirmed.
    • The Appellate Court found that Diamond's use of the sample was de minimus.
      • The Court found that trivial copying does not constitute actionable infringement under copyright law.
    • The Court defined de minimus copying as that where the average audience would not recognize the appropriation.
      • 3 notes was way too short for the average person to recognize that it came from Newton's song.
    • The Court noted that Diamond had a license to use Newton's performance, he just didn't have a license to use the underlying composition. Therefore, in order to be infringement, the sample had to be such that the average person would recognize that the notes were written by Newton.
      • Newton had argued that his flute playing technique was unique and that people could tell he was playing just by listening to how the notes were sounded. But the Court found that didn't matter because it was only the underlying notes that were the basis for the infringement claim.
        • Newton should probably have added annotations to his sheet music so that his unique play style would have been described in the underlying composition. That would have granted him the protection he was looking for.