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  

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."