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
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
The Court defined de minimus
copying as that where the average audience would not recognize the
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.