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Press Release

For Immediate Release: January 21, 2005

Contact:  Natalia Kennedy (212) 998-6736

Brennan Center for Justice and Electronic Frontier Foundation File Brief to Protect Creative Copying in Sound Recordings  

New York, NY- Today, the Brennan Center for Justice at NYU School of Law and the Electronic Frontier Foundation (EFF) filed an amicus brief in Bridgeport Music v. Dimension Films, challenging the Sixth Circuit Court of Appeals’ elimination of the “de minimis” exception for copyright in sound recordings.

The brief argues that the de minimis rule is a longstanding and essential component of all copyright law, including sound recordings.  The rule allows artists to sample small amounts from earlier work to produce new creations. In the visual arts, literature, and music, borrowing is an intrinsic part of the creative process. The brief cites examples from the collage artist Robert Rauschenberg to composers like Charles Ives and John Cage, and literary landmarks like T.S. Eliot’s The Wasteland, made up largely of fragments from other works. 

Congress also has recognized the importance of protecting the de minimis rule for sound recording copyrights.  In 1976, Congress overhauled the Copyright Act and used inclusive language to “make clear that…infringement takes place whenever all or any substantial portion of the actual sounds that go to make up a copyrighted sound are reproduced.”  Clearly, Congress intended for the de minimis rule to apply to all sound recordings.

“The Court of Appeals decision to target trivial borrowing from sound recordings isn’t supported by copyright law or sound policy,” says Marjorie Heins, coordinator of the Free Expression Policy Project at the Brennan Center. “It ignores the history and purpose of the Copyright Act and stifles creativity.”

The brief responds to a lawsuit brought by Bridgeport Music and other owners of the song “Get off Your Ass and Jam.”  A chord of that song was sampled in the track “100 Miles and Runnin.”  A federal district court judge found the borrowing of this chord to be de minimis and not in violation of copyright law.  A three-judge panel of the Court of Appeals reversed the decision.  However, after receiving a petition for rehearing, the judges agreed to reconsider.  The Brennan Center/EFF brief urges them to reverse their original ruling and reinstate the de minimis rule.

For copies of the brief, go to http://www.fepproject.org/courtbriefs/bridgeport.pdf

The Brennan Center for Justice at NYU School of Law, founded in 1995, unites thinkers and advocates in pursuit of a vision of inclusive and effective democracy. The Center’s Free Expression Policy Project (FEPP) provides research and advocacy on issues of free speech, copyright and media policy. Please visit, www.fepproject.org

The Electronic Frontier Foundation (EFF) is a non-profit public interest organization dedicated to protecting civil liberties and free expression in the digital world. Please visit, www.eff.org

Update: In June 2005, the same three judges of the Sixth Circuit Court of Appeals who originally ruled against a "de minimis" rule for music sampling decided not to change their earlier decision. See "Appeals Court Reaffirms Its Tone-Deaf Approach to Music Sampling."

 


The Free Expression Policy Project began in 2000 to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. The FEPP website is now hosted by the National Coalition Against Censorship. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

All material on this site is covered by a Creative Commons "Attribution - No Derivs - NonCommercial" license. (See http://creativecommons.org) You may copy it in its entirely as long as you credit the Free Expression Policy Project and provide a link to the Project's Web site. You may not edit or revise it, or copy portions, without permission (except, of course, for fair use). Please let us know if you reprint!