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Newton v. Diamond

United States Court of Appeals for the Ninth Circuit
388 F.3d 1189 (2004), cert. denied, 545 U.S. 1114 (2005)


James W. Newton (plaintiff) composed the song Choir in 1978. The song included vocals over music played on a flute, and the song was intended to have elements from various styles of music reminiscent of Newton’s childhood memory of listening to music at a church in Arkansas. Newton performed Choir in 1981 and assigned rights to the recording to ECM Records. Newton retained all composition rights to Choir. In 1992, the Beastie Boys (defendant) licensed portions of the song Choir from ECM Records to sample in the song Pass the Mic. However, the Beastie Boys did not obtain a license to the underlying composition from Newton. The Beastie Boys sampled the first six seconds of Choir and used it repeatedly throughout Pass the Mic, as well as in two remixes of Pass the Mic. The six seconds included three notes, and were only used once in the 4.5-minute song. Although the score to Choir had notations about how certain portions of the work should be played, Newton’s distinctive performance techniques and choices in the recording resulted in significant differences from what a generic performance of the work would sound like. Newton sued the Beastie Boys for infringement of the composition rights. The district court granted summary judgment to the Beastie Boys based on a finding that the sampled segment did not meet the originality requirement for copyright protection, and that, even if there was a copyright, the use was not actionable because it was de minimis.

Rule of Law


Holding and Reasoning (Schroeder, J.)

Dissent (Graber, J.)

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