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A use of a copyrighted work is de minimis only if the average audience would not recognize the appropriation. This observation reflects the relationship between the de minimis maxim and the general test for substantial similarity, which also looks to the response of the average audience, or ordinary observer, to determine whether a use is infringing. To say that a use is de minimis because no audience would recognize the appropriation is thus to say that the works are not substantially similar.
Plaintiff James W. Newton composed and performed a song and licensed all rights in the sound recording to a record company ("Company"). The license covered only the sound recording; Newton retained all rights to the composition of the song. Defendants Michael Diamond and others were members of a rap and hip-hop group ("Performers"), which obtained a license from the Company to use portions of the sound recording of Newton's song. The Performers use of the recording consisted of three notes separated by a half-step over a background note and lasting approximately six seconds. The Performers did not obtain a license from Newton to use the underlying composition. Newton filed a lawsuit against the Performers and others in federal district court for copyright infringement. The Performers filed a motion for summary judgment, which the district court granted, finding that no license to the underlying composition was required because, as a matter of law, the musical notes in question lacked sufficient originality to merit copyright protection. The district court also held that even if the sampled segment of the composition was original, the Performers' use was de minimis and therefore not actionable. Newton appealed.
Did the Performers' incorporation of a portion of Newton's copyrighted composition in a recorded song constitute copyright infringement?
The court of appeals affirmed the district court's judgment. The court held that the Performers' use of the composition, as distinct from the use of the composer's performance, was de minimis and therefore not actionable. Considering only the compositional elements, the brief and relatively simple segment of the composition used by the Performers was neither quantitatively nor qualitatively significant when viewed in relation to the composition as a whole. Thus, despite the high degree of similarity from the actual use of the recorded composition, the scope of the similarity was not sufficiently substantial to support Newton's infringement claim.