Digital sampling of sound recordings itself has become an art—an art that has given rise to hit songs that have out-charted the songs they sampled. Yet there is a debate within the music industry and legal field over whether there is a de minimis exception for the unauthorized use of sound recordings. In the summer of 2016, in VMG Salsoul, LLC v. Ciccone, the Ninth Circuit departed from the Sixth Circuit’s unpopular 2006 decision in Bridgeport Music, Inc. v. Dimension Films by holding that the Copyright Act allows for a de minimis exception for the unauthorized use of sound recordings. This note details the impact of the circuit split, by exploring the background of the Copyright Act, the de minimis exception, and providing each circuit’s stance on the de minims exception. Until the circuit split is resolved, many in the music industry are faced with the decision of licensing or litigating. This chills creativity. Rather than wait for Congress—which is subject to capture and control by powerful groups in the music industry—to act, the Supreme Court should resolve the circuit split. This note provides a statutory interpretation that the Supreme Court should use to demonstrate that the Copyright Act does indeed allow for a de minimis exception—after all, the law does not concern itself with trifles.
Elyssa E. Abuhoff,
Circuit Rift Sends Sound Waves: An Interpretation of the Copyright Act's Scope of Protection for Digital Sampling of Sound Recordings,
83 Brook. L. Rev.
Available at: https://brooklynworks.brooklaw.edu/blr/vol83/iss1/21