Majority opinion
In its summary review of the federal court judgement, the Ninth Circuit gave its decision on the assumption that copying of the horn hit had been done as the Plaintiff had submitted sufficient evidence, including anecdotal evidence, to necessitate this inference. However, this was not enough to conclusively prove infringement had occurred as the Court required evidence that such copying was 'substantial' in nature. Therefore, in the majority decision favoring the Defendants the Ninth Circuit held that:
- The horn hit used in Vogue was insubstantial enough so as to be considered de minimis
- The de minimis doctrine is a valid defense to claims of copyright infringement in the case of sound recordings and has not been eliminated by Congress as held in the Bridgeport Music Case.[3]
In considering whether the sample of the horn hit used was substantial or not, the Ninth Circuit used the facts of Newton as reference. In that case, the Beastie Boys used a six-second sample from the original work and looped it throughout the entirety of their new work, the single "Pass the Mic", with the sample appearing over forty times in their rendition of the song. Despite this the Ninth Circuit in its judgement rejected the claims of infringement on the grounds that an average audience would not be able to "discern the role played by the plaintiff in the new song as the hand of a composer", and held such usage insubstantial.[4] On the other hand, in this case, the duration of the sample used is no more than 0.23 seconds, and only appears intermittently throughout the song rather than serving as the bedrock of the composition. Therefore, it is only logical that the sample of the horn hit be held as insubstantial in this case too as it is of lesser duration, frequency and prominence in the new work vis-a-vis the fact scenario in Newton where it was held to be insubstantial and meeting the criteria of a de minimis defense too.
The Ninth Circuit also gave its reason for going against the holding of the Bridgeport Music Case, and why it found the rationale behind its holding unpersuasive. It stated that the Sixth Circuit's reasoning for stating that the de minimis defense has been eliminated by Congress is based on a faulty interpretation of a portion of 17 U.S.C. § 114 which states,
The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.[5]
The Ninth Circuit noted that the purpose of this provision is to limit the rights of the copyright holder, as it promotes creativity by allowing new artists the right to interpolation, rather than expand it, as has been the result of the Sixth Circuits interpretation. It also points out that this provision states that mimicking of the sound in a new and original recording is allowed by this provision, even if it is very well done, but nowhere does it speak of eliminating the de minimis defense in the case of sound recordings as has been the inference drawn by the Sixth Circuit. To further reinforce their argument that the provision seeks to restrict the rights of the copyright holder rather than the other way around, the Ninth Circuit in its judgement also cited the legislative history of the provision where Congress itself states that that "rights granted (to copyright holder) in 17 U.S.C. § 106 are subject to sections 107 through 118 and must be read in conjunction to those provisions", which are meant to 'provide various limitations, qualifications, or exemptions (to rights granted in section 106).'[6] Also, specifically with respect to 17 U.S.C. § 114(b) the Court cited a House Report which when discussing the provision stated that "infringement (would only) take place whenever all or any substantial portion of the actual sounds that go to make up a copyrighted sound recording are reproduced......";[7] by stating that substantiality of sounds reproduced is a factor to be considered when determining claims of infringement it clarified that a de minimis defense exists even in the case of sound recordings.
Once these arguments forwarded by the Bridgeport Music Case are set aside, all that remains is that the new artist used expressive contents from the original artist, but this stands true in various artforms and ventures (e.g. creation of picture collages,[8] usage of small portions of old works as quotes in an analytical piece) where the de minimis defense continues to be applicable.[9]
Finally, the Ninth Circuit Court stated that the lack of legislative action in the aftermath of a judicial statutory interpretation is not indicative of legislative assent of such interpretation and such holds true even in the case of an interpretation by the Supreme Court which affects the laws of the entire nation.[10] Thus, congressional inaction in the aftermath of a decision taken by a single Circuit Court is of even lesser weight and must not be a factor to be considered in the final ruling. Therefore, the Court is justified in ignoring the ruling of the Sixth Circuit in the Bridgeport Music case and holding that the de minimis defense exists even in the realm of sound recordings according to which the defendant is not guilty of copyright infringement.
Dissenting opinion
In the minority opinion delivered by Silverman J., the judge stated that the Bridgeport decision had governed the music industry for over a decade without 'having the sky fall in' or necessitating Congressional intervention. Moreover, he stated that the reasoning provided in the decision in that case was legally sound as can be gleaned from a joint reading of 17 U.S.C. §§ 106 and 114 which state that the original artist has 'the exclusive right to prepare derivative works in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality.', whereas the de minimis defense cannot be found anywhere in the statute. He also reiterated the Sixth Circuits characterization in Bridgeport of sampling as stealing, misappropriation and an act of 'physical taking rather than an intellectual one', and therefore inherently infringing in nature. Finally, the judge stated that the bright line licensing rule is easy and efficient to interpret while the introduction of a 'de minimis' inquiry by the majority shall is 'fuzzy' and 'visceral' and shall only add to the burden of the dockets of copyright courts across the United States. Thus, he stated that he dissents from the majority decision.