De Minimis Copyright Infringement in Music

In the context of musical copyright infringement, the legal doctrine of “de minimis infringement” involves using parts of a song in such a small amount that it does not constitute a significant legal violation. The doctrine posits that the law will disregard copying where the copied material is too trivial to qualify as an infringement.  Under the theory, borrowing one chord from a song may be found to be too insubstantial to qualify as infringing. Courts, however, are split on the question of how to discern what constitutes an inconsequential, or trivial, use of copyrighted material. This article probes into this concept, known as “de minimis” testing, revealing a battleground of clashing legal interpretations between the Sixth and Ninth Circuit Court of Appeals. 

The 6th Circuit – Minimal Yet Substantial

The 6th Circuit Court ruled in the case Bridgeport Music, Inc. v. Dimension Films (2005) that even a small but distinctive piece of a copyrighted work, such as a two-second guitar chord sample, can constitute infringement. This strict perspective disregards de minimis exceptions, raising concerns about its potential impact on creativity and artistic freedom. On the other hand, supporters might say this approach grants copyright holders broad protection, preserving the unique and distinctive elements of creative works. 

The 9th Circuit – One Note Shall Not Infringe

Conversely, the 9th Circuit Court adopts a more flexible stance. For the Ninth Circuit, the question is whether the amount taken is so trivial that it lacks practical importance or economic value. In the case VMG Salsoul v. Ciccone (2016), the 9th Circuit held that a fleeting horn hit lasting less than a second was inconsequential and did not constitute copyright infringement because the amount taken was so trivial that it lacked practical importance or economic value. This interpretation allows for greater creative freedom but raises questions about striking a balance between copyright protection and artistic expression.

The 5th Circuit: A Glimpse of the Future 

While the circuit split primarily involves the 6th and 9th Circuits, the 5th Circuit recently acknowledged widespread criticism of the Sixth Circuit's approach and expressed a willingness to depart from the bright-line rule in the future in the case of Batiste v. Lewis (2020).  The case concerned a jazz musician who sued the rap duo Macklemore & Ryan Lewis for allegedly sampling eleven of his copyrighted sound recordings. This development further emphasizes the need for a uniform standard in determining de minimis infringement.

The Split Creates a Legal Quandary

The circuit split in understanding whether and what is the minimal floor on copyright infringement in music means that copyright holders face an uncertain and inconsistent legal landscape. Where the circuit courts clash on interpretation, song writers and copyright owners are left with uncertainty and incentives for forum shopping.  The key question that remains is whether the Supreme Court will view this issue itself as de minimis, or will it prove significant enough for the Court to step in and provide clarity. 


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