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Circuits Split over Whether Recording Sample Is Infringement or Is De Minimis OK
In June 2016, in VMG Salsoul v. Ciccone, 13-57104, the U.S. Court of Appeals for the Ninth Circuit held that a 0.23 second sample from a sound recording of three horns simultaneously playing the notes of a chord wasn't copyright infringement. In a 2005 decision, Bridgeport Music v. Dimension Films, 383 F.3d 390 (6th Cir. 2004), amended on rehearing, 410 F.3d 792 (6th Cir. 2005), the U.S. Court of Appeals for the Sixth Circuit held that the sampling of any sound from a sound recording, no matter how brief, trivial or minimal, infringed the copyright in the sound recording. In the ensuing decade since Bridgeport Music, although commentators and a number of district courts outside the Sixth Circuit criticized the decision, its holding had not been considered by any other circuit ' until Salsoul.
In Salsoul, the Ninth Circuit rejected Bridgeport Music's reasoning, thereby creating what it characterized as a regrettable but necessary circuit split, leaving record producers and artists in limbo between strict liability for any sampling if a claim is brought in Nashville, which is in the Sixth Circuit, but subject to a “substantial taking” standard for a sampling claim made in Los Angeles, which is in the Ninth Circuit.
Section 114(b) of the Copyright Act of 1976 sets forth a limitation on the scope of copyright protection for sound recordings:
The exclusive right of the owner of copyright in a sound recording under clause (1) of section 106 [the right of reproduction] is limited to the right to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording. ' The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording. [Emphasis added.]
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