# Newton v. Diamond: De Minimis Sampling and the Composition the Beastie Boys Never Licensed

> The Ninth Circuit held the Beastie Boys' six-second flute sample was de minimis copying of James Newton's composition that no average audience would recognize.

Topic: Copyright  |  Author: Lidiia Levitska  |  Source: Intellectual Property Law (outsideipcounsel.com)
Canonical: https://outsideipcounsel.com/blog/newton-v-diamond-de-minimis-composition-sampling/


*Newton v. Diamond*, 388 F.3d 1189 (9th Cir. 2004), amending 349 F.3d 591 (9th Cir. 2003), is the controlling authority on when sampling a musical composition is too trivial to infringe. The Beastie Boys paid ECM Records $1,000 to sample six seconds of jazz flutist James W. Newton's recording of his piece "Choir," looped it more than forty times through "Pass the Mic," and never sought a license from Newton for the underlying composition. Chief Judge Mary Schroeder, writing over a dissent by Judge Susan Graber, held that the unlicensed use of the composition, a three-note vocal figure sung over a held C on the flute, was de minimis and therefore not actionable, because an average audience would not recognize the appropriation.

The decision cemented the rule that a de minimis taking defeats infringement liability for musical compositions, and it drew a sharp doctrinal line between the two copyrights embedded in every recorded song: the composition and the sound recording. That line would later fracture into an open circuit split between *Bridgeport Music, Inc. v. Dimension Films* and *VMG Salsoul, LLC v. Ciccone*.

## At a glance

- **Case:** *Newton v. Diamond*, 388 F.3d 1189 (9th Cir. 2004), amending 349 F.3d 591 (9th Cir. 2003)
- **Decided:** November 4, 2003; amended opinion filed November 9, 2004; opinion by Chief Judge Schroeder, joined by Judge Thompson; Judge Graber dissenting; affirming summary judgment for the defendants
- **Holding:** The Beastie Boys' unlicensed sampling of a three-note segment of Newton's composition "Choir" was de minimis, and thus not infringement, because an average audience would not recognize the appropriation of the composition apart from Newton's licensed performance.
- **Status:** Final. Rehearing and rehearing en banc were denied, and the Supreme Court denied certiorari in 2005, 545 U.S. 1114. The rule was extended to sound recordings in the Ninth Circuit by *VMG Salsoul v. Ciccone* in 2016.

## Two copyrights in every recorded song

Federal law treats a recorded song as two distinct works. The musical composition, the notes and lyrics as written, is protected under 17 U.S.C. § 102(a)(2); the sound recording, the fixed performance of that composition, is separately protected under 17 U.S.C. § 102(a)(7). The two copyrights are frequently owned by different parties, and a license to one conveys nothing as to the other.

*Newton* forced courts to take that separation seriously in the sampling context. Newton composed "Choir" in 1978, a piece for flute and voice drawing on African-American gospel, Japanese ceremonial court music, traditional African music, and classical sources. In 1981 he recorded it and licensed all rights in the sound recording to ECM Records for $5,000, while retaining the composition. When the Beastie Boys obtained their sample license from ECM in 1992 for a one-time fee of $1,000, they acquired rights only in the recorded performance. Whatever they took from the composition, they took without permission.

## Six seconds, three notes, and a lawsuit eight years later

The sampled passage is the opening six seconds of "Choir": Newton sings three notes, C, D-flat, and back to C, while simultaneously fingering a held C on the flute so that voice and multiphonics interact. The Beastie Boys looped that fragment as a background element throughout "Pass the Mic," released on the 1992 album "Check Your Head," where it appears more than forty times across various renditions.

Newton sued in the Central District of California in May 2000, alleging infringement of the composition. Judge Nora M. Manella granted summary judgment to the defendants, *Newton v. Diamond*, 204 F. Supp. 2d 1244 (C.D. Cal. 2002), on two independent grounds: the three-note figure lacked sufficient originality to merit protection at all, and even if protectable, the use was de minimis. The Ninth Circuit affirmed solely on the second ground, assuming without deciding that the segment was original.

## Filtering the performance out of the composition

The analytical move at the heart of the opinion is filtration. Because the Beastie Boys held a valid license to the sound recording, the court's inquiry was confined to whether their use of the composition itself could sustain an infringement claim. That required the court to "filter out" the licensed elements of the sound recording and compare only the unlicensed compositional elements, an approach it drew from *Cavalier v. Random House* and *Apple Computer, Inc. v. Microsoft Corp.*

Newton's own experts supplied the material for that filtration, and it undid his case. Dr. Christopher Dobrian explained that Newton "blows and sings in such a way as to emphasize the upper partials of the flute's complex harmonic tone," a modification not requested in the score. Dr. Oliver Wilson explained that the score, as is the custom in the jazz tradition, "does not contain indications for all of the musical subtleties that it is assumed the performer-composer of the work will make in the work's performance," and that its function was "more mnemonic in intention than prescriptive." The court's response was blunt: Newton's experts kept describing the sound produced by the Newton technique, but a sound is protected by copyright only once fixed in a tangible medium, and the only fixation here was the performance he licensed to ECM two decades earlier, which ECM in turn licensed to the Beastie Boys. What remained for the infringement claim was the composition as scored: three notes separated by a half-step, sung over a sustained C.

## De minimis copying and the average audience

With the composition isolated, the court applied the substantiality requirement that runs through all of copyright law: trivial copying is not actionable, a principle reflecting the maxim de minimis non curat lex, that the law does not concern itself with trifles. The governing Ninth Circuit standard comes from *Fisher v. Dees*, 794 F.2d 432 (9th Cir. 1986): a taking is de minimis "only if it is so meager and fragmentary that the average audience would not recognize the appropriation."

Measured against the composition as a whole, the sampled figure failed both quantitatively and qualitatively. It appears only once in "Choir," lasts six seconds when performed, and amounts to roughly two percent of the four-and-a-half-minute recording. Qualitatively, the court found the scored passage no more significant than any other section, and the defense expert's characterization went unrebutted. The Beastie Boys' expert Dr. Lawrence Ferrara concluded that the sampled compositional elements were not the heart or the hook of "Choir" but were "simple, minimal and insignificant," calling the figure "merely a common, trite, and generic three-note sequence, which lacks any distinct melodic, harmonic, rhythmic or structural elements" and "a common building block tool" that "has been used over and over again by major composers in the 20th century." Newton offered no evidence rebutting that testimony.

The court also rejected Newton's argument that the looping mattered. Drawing on Justice Story's formulation in *Folsom v. Marsh*, it held that substantiality is measured by the copied portion's relation to the plaintiff's work as a whole, not by how heavily the defendant leaned on it. A contrary rule would let a defendant escape liability by burying significant takings in its own material.

Judge Graber dissented. She accepted the majority's legal framework but argued that summary judgment was improper: the sampled segment was really four tones, three sung notes above a fingered held C, and even short passages can be qualitatively significant, as the opening of Beethoven's Fifth Symphony shows. In her view, Newton's evidence that the technique of simultaneously singing and fingering specific pitches was distinctive created a genuine factual dispute for a jury.

## The sampling split that followed

*Newton* decided only a composition claim, and within a year the Sixth Circuit went the other way for sound recordings. *Bridgeport Music, Inc. v. Dimension Films*, 410 F.3d 792 (6th Cir. 2005), announced a bright-line rule, often summarized by its own admonition to "get a license or do not sample," under which any sampling of a sound recording, however small, infringes. For a decade, producers faced a regime in which the same two-second sample could be de minimis as to the composition under *Newton* but automatically infringing as to the recording under *Bridgeport*.

The Ninth Circuit closed that gap on its side of the split in *VMG Salsoul, LLC v. Ciccone*, 824 F.3d 871 (9th Cir. 2016), the Madonna "Vogue" horn-stab case, which expressly rejected *Bridgeport* and applied *Newton*'s average-audience test to sound recordings as well. As of July 2026 the Supreme Court has never resolved the disagreement, so the viability of a de minimis defense to a sound-recording sampling claim still depends on where suit is filed.

## Open questions

*Newton* left several issues unsettled. First, the court assumed rather than decided that the three-note figure was original enough for protection, so the case gives little guidance on the copyrightability floor for short musical phrases. Second, the average-audience test raises an unanswered definitional question: which audience, hearing which version, under what conditions? Judge Graber's dissent shows how much work that abstraction does. Third, the filtration approach depends on a clean split between composition and performance, but for genres in which the score is skeletal and the performance supplies most of the musical content, the line the court drew can strip a composer's claim down to almost nothing. Finally, the *Bridgeport* versus *VMG Salsoul* circuit split remains live, leaving national distributors exposed to inconsistent rules.

## Implications for creators and businesses

- **Clear both copyrights, not one.** A master-use license from the label covers only the sound recording. Unless the sampled compositional material is truly trivial, a separate license from the publisher or songwriter is required, and *Newton* shows that courts will scrutinize exactly what each license conveyed.
- **The de minimis defense is real but narrow.** It protects takings so meager and fragmentary that the average audience would not recognize the source, measured against the plaintiff's work as a whole. It is not a safe harbor for short-but-recognizable hooks; *Fisher v. Dees* itself found six copied bars substantial because they were recognizable.
- **Looping does not change the math.** Repetition of a sample throughout the new track is irrelevant to substantiality, which looks to the copied portion's significance within the original work, not its prominence in the defendant's.
- **Expert testimony cuts both ways.** Newton's experts, retained to show the passage's distinctiveness, ended up proving that the distinctive elements lived in the licensed performance rather than the scored composition. Sampling disputes are often won or lost on how the expert record allocates value between recording and composition.

## Frequently asked questions

**Why did the Beastie Boys win when they never licensed Newton's composition?** Because the Ninth Circuit held their copying of the composition was de minimis. The band had a valid license to the sound recording from ECM Records, so the only question was whether the unlicensed compositional material, a three-note sequence sung over a held C note, was substantial. Stripped of Newton's distinctive performance techniques, which belonged to the licensed recording, the court concluded an average audience would not recognize the appropriation.

**What is the de minimis doctrine in copyright law?** It is the principle that trivial copying is not actionable infringement, reflecting the maxim de minimis non curat lex, meaning the law does not concern itself with trifles. Under *Fisher v. Dees*, as applied in *Newton*, a use is de minimis only if it is so meager and fragmentary that the average audience would not recognize the appropriation, measured against the plaintiff's work as a whole rather than by how prominently the defendant used the material.

**Does Newton v. Diamond apply to sound recordings too?** In the Ninth Circuit, yes. *Newton* itself decided only a composition claim, and the Sixth Circuit's *Bridgeport Music v. Dimension Films* refused to apply de minimis analysis to sound recordings. But in *VMG Salsoul v. Ciccone* in 2016, the Ninth Circuit expressly rejected *Bridgeport* and extended *Newton*'s de minimis rule to sound recordings, creating a circuit split that remains unresolved as of July 2026.

## Authorities and sources

- [*Newton v. Diamond*, 388 F.3d 1189 (9th Cir. 2004) (amended opinion)](https://law.resource.org/pub/us/case/reporter/F3/388/388.F3d.1189.02-55983.html)
- [*Newton v. Diamond*, 349 F.3d 591 (9th Cir. 2003) (original opinion PDF)](https://www.law.berkeley.edu/files/Newton_v_Diamond.pdf)
- [*Newton v. Diamond* case file and opinions, Music Copyright Infringement Resource (GWU Law)](https://blogs.law.gwu.edu/mcir/case/newton-v-diamond/)
- [17 U.S.C. § 102 (subject matter of copyright, including musical works and sound recordings)](https://www.law.cornell.edu/uscode/text/17/102)
- [*Fisher v. Dees*, 794 F.2d 432 (9th Cir. 1986)](https://law.resource.org/pub/us/case/reporter/F2/794/794.F2d.432.85-5888.html)
- [*VMG Salsoul, LLC v. Ciccone*, 824 F.3d 871 (9th Cir. 2016) (opinion PDF)](https://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/02/13-57104.pdf)
- [Newton v. Diamond case summary, Loeb & Loeb LLP](https://www.loeb.com/en/experience/newton-v-diamond)
- [Newton v. Diamond case brief, Quimbee](https://www.quimbee.com/cases/newton-v-diamond)