## Facts

- James W. Newton Jr. composed “Choir” (1978) and recorded it (1981).
- Newton assigned rights in the “Choir” sound recording to ECM Records but retained copyright in the underlying musical composition.
- In 1992, defendants obtained a license from ECM to use a portion of the “Choir” sound recording in “Pass the Mic” (and remixes), but did not obtain a license from Newton for the composition.
- Defendants digitally sampled the opening six seconds of the recording and looped it as a background element in “Pass the Mic.”
- The compositional material at issue was characterized as a three-note sequence separated by a half-step over a sustained C note.
- Newton sued for infringement of the musical composition (not the sound recording).

## Issues

1. Whether defendants’ unlicensed sampling of a six-second, three-note segment constituted actionable infringement of the “Choir” musical composition when the sound recording itself was licensed.
2. Whether the copied compositional elements were more than de minimis under the “average audience/listener” standard for fragmented literal similarity.

## Decision

- The Ninth Circuit affirmed summary judgment for defendants.
- The court confined the analysis to the musical composition because the sound recording was licensed and the claim targeted only compositional rights.
- Treating the claim as “fragmented literal similarity,” the court held the taking was de minimis and therefore non-actionable.
- Because the copying was de minimis as to the composition, defendants’ failure to license the composition did not create liability on these facts.
- A dissent argued the sampled passage could be compositionally distinctive and that summary judgment was inappropriate.

## Legal Principles

- Copyright in a sound recording and copyright in the underlying musical composition are distinct; licensing one does not automatically license the other.
- For “fragmented literal similarity,” infringement turns on the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole.
- Copying is de minimis when it is so meager and fragmentary that an average audience would not recognize the appropriation as a taking of protected expression.
- In evaluating compositional infringement, performance-specific attributes tied to the recording are not treated as protected compositional content when the claim concerns only the composition.

## Conclusion

The court held that sampling and looping a brief, simple three-note fragment from a musical composition, in the context presented, was de minimis and could not support a composition copyright infringement claim, even though the composition was not licensed.


Newton v. Diamond, 349 F.3d 591 (9th Cir. 2003)