Don’t Follow An Elephant Act: The 9th Circuit Adds Confusion and Rewards Obfuscation Yet Again

Who can forget the 9th Circuit Court of Appeals improbable ruling in the latest “Eat Universal for Lunch” case brought by the Electronic Frontier Foundation, one of Google’s “dark money non-profits” according to reports.

The 9th Circuit’s ruling in  Lenz v. Universal Music Corp. et al (Civil 5:07-cv-03783-JF Order and Amended Opinion (9thCir.) (March 17, 2016)) established the confusing rule that independent artists have to “consider” fair use (and document doing so) before sending a DMCA takedown notice to YouTube (and probably any DMCA notice).  At least one artist correctly believes this requires him to get a legal opinion in order to do so–or as he put it, the 9th Circuit established a “legal literacy test” for artists to enjoy their rights under DMCA that violates the Universal Declaration of Human Rights.

Now the 9th Circuit has ruled that a little bit of a sample is acceptable so long as a majority of the panel thinks it’s a “reasonable” taking.  In VMG Salsoul v. Madonna, et al,  the 9th Circuit permitted a .23 second taking of a horn hit in “Vogue” was a “de minimus” or not legally enforceable rip in the minds of a majority of the judges.  This ruling stands in sharp contrast to the bright line “get a license or do not sample” ruling by the 6th Circuit in Bridgeport v. Dimension Films and Miramax Film Corp.  

To the consternation of (at least some) label lawyers, there now is a mushy morass where a bright line previously gave guidance.  They will experience that existential dread that comes from knowing that the bell will eventually toll for them with one of their records and one of their artists.

After the 9th Circuit’s decision, everyone will be arguing about how little they took so they don’t have to pay for a license and deal with the legal hold on their records.  Because these things get around.

This is actually a significant property rights issue.  Judge Silverman’s dissent in the Madonna case identifies the issue:

The plaintiff is the owner of a copyright in a fixed sound recording. This is a valuable property right, the stock-intrade of artists who make their living recording music and selling records. The plaintiff alleges that the defendants, without a license or any sort of permission, physically copied a small part of the plaintiff’s sound recording – which, to repeat, is property belonging to the plaintiff – and, having appropriated it, inserted into their own recording. If the plaintiff’s allegations are to be believed, the defendants deemed this maneuver preferable to paying for a license to use the material, or to hiring their own musicians to record it.

In any other context, this would be called theft. It is no defense to theft that the thief made off with only a “deminimis” part of the victim’s property.

The majority chooses to follow the views of a popular treatise instead of an on-point decision of the Sixth Circuit, a decision that has governed the music industry in Nashville – “Music City” – and elsewhere for over a decade without causing either the sky to fall in, or Congress to step in. And just exactly what is the Sixth Circuit’s radical holding in Bridgeport Music, Inc. v. Dimension Films that the majority finds so distasteful? It’s this: if you want to use an identical copy of a portion of a copyrighted fixed sound recording – we’re not talking about “substantially similar” tunes or rhythms, but an actual identical copy of a sound that has already been recorded in a fixed medium – get a license….

True, “Get a license or do not sample” doesn’t carry the same divine force as “Thou Shalt Not Steal,” but it’s the same basic idea. I would hold that the de minimis exception does not apply to the sampling, copying, stealing, pirating, misappropriation — call it what you will — of copyrighted fixed sound recordings. Once the sound is fixed, it is tangible property belonging to the copyright holder, and no one else has the right to take even a little of it without permission. (Emphasis mine.)

Except, of course, the government.

And now…back to cleaning up behind the elephants in the circus of life.


One thought on “Don’t Follow An Elephant Act: The 9th Circuit Adds Confusion and Rewards Obfuscation Yet Again

  1. What percentage of the work is .23 seconds? Or what fraction? If an author were to lift a 230 word scene from a 120,000 word novel, would that be deminimis or would it be plagiarism?


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