DeMinimis Sampling and Copyright
Arecent decisionthe United States Court of Appeals for the Ninth Circuit found that Madonna’ssong Vogue was not infringing as aresult of a horn segment sampled from another song.
The Facts
Madonna’srecorded song Vogue became a mega-hitdance song after its release on Madonna’s albums. The plaintiff asserted that the producer of Vogue copied a 0.23-second segment ofhorns from an earlier song known as LoveBreak and used a modified version of that snippet when recording Vogue.
Thehorn hits in Love Break occurred intwo forms. First, there was a singlehorn hit which consists of a quarter-note chord comprised of four notes. The single horn hit lasts for .23seconds. Second, there were double hornhits consisting of an eighth-note chord of the same notes, followed immediatelyby a quarter-note chord of the same notes. The instruments were predominately trombones and trumpets.
Vogue contained similar single and doublehorn hits. The plaintiff alleged that the copyright in its musical workconsisting of the musical composition had been infringed, as well as thecopyright in its sound recording of the musical work.
Thehorn hits were easy to miss without careful attention and the district court judgefound that the sampling of the horn hits was de minimis or trivial. The district court granted summary judgementdismissing the claim and the plaintiff appealed from this judgement.
The Musical Composition
Theplaintiff’s evidence consisted primarily of an admission based on evidencegiven by an assistant of the person responsible for producing Madonna’s song aswell as reports from musical experts. Thealleged sampling was disputed by the defendants. However, for the purposes of the appeal, thecourt was prepared to assume that copying had occurred.
Thecourt said that when considering a claim of infringement of a musicalcomposition what matters is not how musicians actually played the notes butrather the generic rendition of the composition. The elements unique to the performance werenot considered and the point of view of the comparison was the writtencompositions of the two pieces of music in issue.
Thesampling consisting of double and single horn hits. The single horn hits lasted less than aquarter second and the double horn hits lasted less than a second. The horn hits appeared five or six times inthe song Vogue. The alleged sampling only involved oneinstrument group out of many. As aresult the court agreed with the finding that no infringement had taken place.
The Sound Recording
Whenconsidering a claim of infringement of a sound recording the court said thatwhat matters is how the musicians played the notes in the recording. That is, how their rendition distinguishedthe recording from a generic rendition of the same composition.
Thecourt agreed that a dismissal of this claim was appropriate. The defendants copied one quarter-note of afour-note cord lasting 2.3 seconds. Thehorns were further isolated by filtering out the instruments playing at thesame time; transposed to a different key; truncated and other effects andsounds added to the chord itself. Theproducer also overlaid the resulting horn hits with sounds from many otherinstruments to create the song Vogue.
Theplaintiff argued that even if the copying was trivial this was irrelevantbecause there was no de minimis exception that applied to infringement ofcopyright in a sound recording. In thisregard, the plaintiff relied on a decision of the United States Court of Appealfor the Sixth Circuit. The court refusedto follow this decision and found that a “de minimis exception” was availablein actions alleging infringement of a copyright in a sound recording.
Thissplit between the circuits will likely lead, at some time, to a U.S. SupremeCourt decision that clarifies the scope of unauthorized sampling in theU.S.
The Canadian Position
Underthe Copyright Act, musical works andsound recordings are treated in a slightly different fashion.
Amusical work is defined to mean any work of music or musical composition withor without words. The rights availableto this type of work are set out in section 3 of the Act and include the soleright to produce or reproduce the work or any substantial part thereof in anymaterial form.
Forsound recordings, at least those created after September 1, 1997, the maker ofthe sound recording has a copyright in the sound recording consisting of thesole right to reproduce the sound recording or any substantial part of it inany material form.
Whilethere is no exception in the CopyrightAct for de minimis reproduction, the cases of this type are decided on thebasis of whether the work or any substantial part thereof has been reproduced.Unless a substantial part of the work is reproduced there is no viable claimfor infringement. We have dealt with theissue of substantiality in a previous comment here.
Insubstance what constitutes a substantial part of a work or a sound recording isa rather flexible notion. It is a matterof fact and degree and whether a part is substantial must be decided by itsquality rather than its quantity. Inaddition, the Supreme Court of Canada has said that this question should beanswered from the perspective of a person whose senses and knowledge allow himor her to fully assess and appreciate all the relevant aspects of the works inissue.
Comment
In the U.S. it appearsthat there is some uncertainty concerning the application of a de minimisexception since different results have been reached in different circuits. However, as noted above, this should not be anissue in Canada since infringement will only occur if a substantial part of awork or a sound recording is reproduced.
John McKeown
Goldman SloanNash & Haber LLP
480University Avenue, Suite 1600
Toronto,Ontario M5G 1V2
Direct Line:(416) 597-3371
Fax: (416)597-3370
Email: mckeown@gsnh.com
These comments are of a general nature and not intended to provide legaladvice as individual situations will differ and should be discussed with alawyer.
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