Circuits split on de minimis sampling?

Not surprised that 9th Circuit upheld [pdf] their earlier ruling (Newton v. Diamond, et. al. [pdf]) that the Beastie Boys are not guilty of copyright infringement for their sampling of a six-second, three-note segment of a performance by accomplished jazz flutist, James W. Newton.

The district court granted summary judgment to the defendants. In a scholarly opinion, it held that no license to the underlying composition was required because, as a matter of law, the notes in question — C - D flat - C, over a held C note — lacked sufficient originality to merit copyright protection. Newton v. Diamond, 204 F. Supp. 2d 1244, 1256 (C.D. Cal. 2002). The district court also held that even if the sampled segment of the composition were original, Beastie Boys’ use of a brief segment of the sound recording of “Choir” was a de minimis use of the “Choir” composition and therefore was not actionable. Id. at 1259. We affirm on the ground that the use was de minimis.

Interestingly, furdlog notes that the Dissent states that

The majority is correct that James Newton’s considerable skill adds many recognizable features to the performance sampled by Beastie Boys. Even after those features are “filtered out,” however, the composition, standing alone, is distinctive enough for a fact-finder reasonably to conclude that an average audience would recognize the appropriation of the sampled segment and that Beastie Boys’ use was therefore not de minimis.

which is more along the lines of the 6th Circuit's ruling in Bridgeport Music v. Dimension Films [html] where the court says

Get a license or do not sample. We do not see this as stifling creativity in any significant way. It must be remembered that if an artist wants to incorporate a riff from another work in his or her recording, he is free to duplicate the sound of that riff in the studio.

Actually, my title is a bit tricky -- there's a distinction between the two cases that is important. The Beasties case deals with a musical composition whereas Bridgeport Music deals with the sound recording statute which has no de minimus exceptions. See Lessig: Get a license or do not sample.

/updated 11-15-04/ Malcolm Gladwell on the sample:

In 1992, the Beastie Boys released a song called “Pass the Mic,” which begins with a six-second sample taken from the 1976 composition “Choir,” by the jazz flutist James Newton. The sample was an exercise in what is called multiphonics, where the flutist “overblows” into the instrument while simultaneously singing in a falsetto. In the case of “Choir,” Newton played a C on the flute, then sang C, D-flat, C—and the distortion of the overblown C, combined with his vocalizing, created a surprisingly complex and haunting sound. In “Pass the Mic,” the Beastie Boys repeated the Newton sample more than forty times. The effect was riveting.

Something Borrowed, THe New Yorker (Issue of 2004-11-22, Posted 2004-11-15)