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For an unauthorized use of a copyrighted work to be actionable, the use must be significant enough to constitute infringement. This means that even where the fact of copying is conceded, no legal consequences will follow from that fact unless the copying is substantial. Even where there is some copying, that fact is not conclusive of infringement. Some copying is permitted. In addition to copying, it must be shown that this has been done to an unfair extent. This principle reflects the legal maxim, de minimis non curat lex (the law does not concern itself with trifles)
Plaintiff James W. Newton, a jazz flutist and composer, made a sound recording of his copyrighted composition. He licensed his rights in the sound recording to a record company but retained all rights to the composition. The defendants, members of the rap and hip-hop group Beastie Boys obtained a license to use portions of the sound recording in various rendition of their song. Beastie Boys did not obtain a license from Newton to use the underlying composition. Beastie Boys incorporated a six-second, three-note segment from the performance into one of their own recordings. Newton then filed the present, alleging violations of his copyright in the underlying composition, as well as Lanham Act violations for misappropriation and reverse passing off. The district court granted summary judgment on the ground that, as a matter of law, the three notes lacked sufficient originality to merit copyright protection and the use of them by the Beastie Boys was non-actionable, de minimis use. Plaintiff appealed.
Did the use of plaintiff’s composition in this case constitute a de minimis use?
The Court affirmed the district court’s decision on the ground that the use was de minimis. Because the defendants were authorized to use the sound recording, plaintiff could recover only if the copyright for the composition was infringed upon - that issue had to be considered based on the score itself, devoid of any of the unique performance elements found in the sound recording. In this case, the Court averred that no reasonable juror would find the three-note portion of the composition used by the performers was a quantitatively or qualitatively significant portion of the composition as a whole.