You’ve finally perfected that note on the French horn. According to the U.S. District Court of the Central District of California though, the sound you make when you blow it probably isn’t sufficiently original and non-trivial to warrant copyright protection. Or at least that was the case on November 18, 2013, when Judge Beverly Reid O’Connell, in granting a motion for summary judgment in favor of the defendants, held that a sample of a single horn blast allegedly used by Madonna on her song “Vogue,” was not subject to copyright protection because it lacked originality, and even if it was, the copying was “de minimis.”
The first part of Judge O’Connell’s ruling was no surprise. Although the bar of originality for copyright protection is low, a single note on a horn probably shouldn’t qualify, at least not without some additional special characteristics. But the second part of the ruling justifiably caught the attention of copyright scholars. “De minimis” literally means “about minimal things,” and in the context of copyright law, it’s typically employed when the portion of a copyrighted work that is alleged to have been used without authorization is not quantitatively or qualitatively significant. In the Madonna case, Judge O’Connell held that the single horn blast was neither of significant duration, nor of significant importance in the context of the copyrighted work as a whole, to warrant copyright protection.
So, why was this kind of a big deal? Back in 2005, in Bridgeport Music, Inc. v. Dimension Films, the Sixth Circuit held that “no de minimis inquiry should be undertaken at all when the defendant has not disputed that it digitally sampled a copyrighted sound recording.” In other words, you needed to properly license any use at all of a sound recording, even if the portion you wanted to use was just one note, even a single horn blast. Because cases like these don’t get fully litigated that often, many of us in the copyright world worried that, if it came down to it, other judicial circuits might also adopt the bright-line rule in Bridgeport. Some copyright scholars even sounded the death knell for “de minimis.”
That’s certainly what the plaintiffs in the Madonna case were hoping the Ninth Circuit would do. But instead, Judge O’Connell pointed out that the Bridgeport decision from the Sixth Circuit had not been adopted in the Ninth Circuit, and that the controlling precedent was instead Newton v. Diamond, a Ninth Circuit case from 2003. In Newton, the Beastie Boys had sampled three notes from “Choir” by jazz musician James Newton in their track, “Pass the Mic.” The Court there applied the “de minimis” standard, arguing that “for an unauthorized use of a copyrighted work to be actionable, the use must be significant enough to constitute infringement.” Hence, the ruling in the Madonna case.
Judge O’Connell’s ruling in the Madonna case clearly signals that, at least in the Ninth Circuit, the concept of “de minimis” is alive and well. But, you should still tread carefully around these issues. Jurisdictions vary, and the particular facts of your situation could lead to an opposite decision than the ones described here – and that’s true even if you reside in the Ninth Circuit. And if you reside in the Sixth Circuit, unfortunately for the moment you’re still stuck with Bridgeport, so sample – and clear – wisely!
Holler at your friendly, neighborhood entertainment attorney if you have any questions about sampling or copyright law in general. You can contact me here.
 The workaround for this was to rerecord the part you wanted to sample, thus skirting the need to license the sound recording, and then at most you’d only be on the hook for impermissibly using the composition or only have to license one set of rights.
 And I should note that there were some additional interesting facts in the Madonna case that may have contributed to the decision to not adopt the rule in the Sixth Circuit, or at least to the way in which this case came out.