By Scott Hervey
On June 2, 2016 the Ninth Circuit issued an opinion in a music sampling Copyright infringement case that sets up a split between the Ninth Circuit and the Sixth Circuit which will likely send the issue to the Supreme Court. At issue in the Ninth Circuit case was a claim of infringement based on Madonna’s use of horn samples from the song “Love Break” in her hit song “Vogue”. The first horn sample is a “single” horn hit comprised of a quarter-note chord with lasts for 0.23 seconds, and the second horn sample is a “double” horn hit consisting of an eighth-note chord of roughly the same length as the first. In the various commercial versions of “Vogue”, the single horn hit is used once and the second is used a varying number of times but not more than 5. The plaintiff claimed that the unapproved use of these samples infringes the plaintiff’s rights in both the master recording and composition of “Love Break.”
Under Ninth Circuit precedent, the de minimis exception – where a use is of such a small amount that the average audience would not recognize the appropriation – applies to claims of infringement of a copyrighted composition, but it is an open question whether the exception applies to claims of infringement of a copyrighted sound recording.
Under the 2005 Sixth Circuit ruling in Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), for copyrighted sound recordings, any unauthorized copying – no matter how trivial – constitutes infringement. In Bridgeport, the rap group N.W.A. sampled a two-second guitar chord from a Funkadelic tune and used it five times in their the song “100 Miles and Runnin’”. In its opinion, the Sixth Circuit wrote: “Get a license or do not sample.” The decision effectively eliminated the de minimis doctrine for sampling recorded music in the Sixth Circuit.
Bridgeport was an incredibly controversial ruling that had a huge impact on the music industry and what was standard industry practice. And while Bridgeport provided very clear guidelines on music sampling usage (get a license for everything), artists and music producers vehemently claimed that the ruling hindered creativity.
Addressing the application of the de minimis defense to copyright infringement of sound recordings, the Ninth Circuit rejected the holding of Bridgeport and held that the de minimis defense “applies throughout the law of copyright, including cases of music sampling.” The court continued:
Because we conclude that Congress intended to maintain the “de minimis” exception for copyrights to sound recordings, we take the unusual step of creating a circuit split by disagreeing with the Sixth Circuit’s contrary holding in Bridgeport… We acknowledge that our decision has consequences. But the goal of avoiding a circuit split cannot override our independent duty to determine congressional intent. Otherwise, we would have no choice but to blindly follow the rule announced by whichever circuit court decided an issue first, even if we were convinced, as we are here, that our sister circuit erred.
While this split between the Ninth Circuit and Sixth Circuit will likely be resolved at the Supreme Court, during the interim we will likely see artists and producers emboldened by the Ninth Circuit decision and sound recording owners race to a district court within the Sixth Circuit whenever they believe a sample may infringe their rights.