The Ninth Circuit has issued a divided opinion finding that the Beastie Boys are not guilty of copyright infringement for their sampling of a six-second, three-note segment of a performance by accomplished jazz flutist, James W. Newton. The decision is here (Newton v. Diamond, et. al. [PDF]).

While the decision is a victory for those who think that copyright law is over inclusive, it is not a particularly important decision per se because the facts are rather unique. However, the case is an interesting one and certainly illustrates the complexities and strangeness of current copyright law.

In this case the Beastie Boys had properly licensed the right to sample Newton's performance. However, Newton was suing for infringement of his underlying composition (sound recordings and their underlying compositions almost always being separate in current law). Thus, the court was forced to consider only the elements of infringement relating to the composition, not the performance. This hurt Newton's case since the richness of jazz is often more about the performance than the composition:

In filtering out the unique performance elements from consideration, and separating them from those found in the composition, we find substantial assistance in the testimony of Newton’s own experts. His experts reveal the extent to which the sound recording of “Choir” is the product of Newton’s highly developed performance techniques, rather than the result of a generic rendition of the composition. As a general matter, according to Newton’s expert Dr. Christopher Dobrian, “[t]he contribution of the performer is often so great that s/he in fact provides as much musical content as the composer.” This is particularly true with works like “Choir,” given the nature of jazz performance and the minimal scoring of the composition.

Once the court eliminated the special performance aspects of the sampled element (which was properly licensed), the question was whether or not the copying from the underlying composition was de minimus or not. An important element of the decision was whether the three-note sequence was particularly special:

This evidence is consistent with the opinion of Beastie Boys’ expert, Dr. Lawrence Ferrara, who stated that the sampled excerpt from the “Choir” composition “is merely a common, trite, and generic three-note sequence, which lacks any distinct melodic, harmonic, rhythmic or structural elements.” Dr. Ferrara also described the sequence as “a common building block tool” used over and over again by major composers in the 20th century, particularly the ‘60s and ‘70s, just prior to James Newton’s usage.”

Frankly, I'm surprised you need a court to determine that a three-note sequence (even if over another note) is so easily distinguished. How many possible three-note sequences are there? Haven't all of them been used at one time or another? Couldn't one easily write a program that would publish all possible sequences? The district court found that the three-note sequence lacked originality and was not copyrightable, but the appeals court didn't reach that issue.

The appeals court properly found the copying de minimus under the appropriate standard:

On the undisputed facts of this case, we conclude that an average audience would not discern Newton’s hand as a composer, apart from his talent as a performer, from Beastie Boys’ use of the sample.

The dissent, on the other hand, believed that the three notes would be distinctive no matter who performed them.

via How Appealing