Intellectual Property Law
New Matter SUMMER 2017, Volume 41, Number 3
Content
- McLe Self-Study Article
- Ninth Circuit Report
- Contents
- Copyright Commentary
- Letter from the Chair
- The Licensing Corner
- The State Bar of California Intellectual Property Alumni
- 2016 New Matter Author Submission Guidelines
- Intellectual Property Section Executive Committee 2015-2016
- Intellectual Property Section Interest Group Representatives 2015-2016
- Ttab Decisions and Developments
- Case Comments
- Online Cle For Participatory Credit
- Letter from the Editor-in-Chief
- The Meaning Behind Moral Rights Waiver Language in Contracts in the United States
- Lynne Beresford 1942-2016
- Federal Circuit Report
- Enhanced Patent Damages: the "Halo Effect"
- International Ip Developments
Case Comments
Lowell Anderson
Stetina Brunda Garred & Brucker
COPYRIGHT – DE MINIMUS
A 1990’s Madonna hit song titled "Vogue" contained one 0.23 second single horn hit physically sampled from the sound recording titled Love Break and also contained six, two horn hits lasting under a second, each of which were created from that sampled single horn hit. "We hold that the ‘de minimis exception applies to infringement actions concerning copyrighted sound recordings, just as it applies to all other copyright infringement actions." "A ‘use is de minimis only if the average audience would not recognize the appropriation.’" "A reasonable jury could not conclude that an average audience would recognize the appropriation of the Love Break composition" or of the sound recording as other instruments were simultaneously heard and even Plaintiff’s expert erred in discerning which parts of the song were copied. 17 U.S.C. § 106(1)-(2) and 114(b) allows a sound recording to be imitated by independent fixation but the limitation of § 114(b) does not prevent a de minimis copying requirement. Contrary to Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), which set out a bright line rule making any physical copying or sampling of a sound recording an infringement. Summary judgment of non-infringement was affirmed. Judge Silverman dissented and would not create a circuit split. VMG Salsour, LLC. v. Ciccone, LEXIS 10017 (9th Cir. June 2, 2016).