While the fight over how much of a sound recording can be legally sampled continues in the No Limit Films case, the challenge by jazz flutist James W. Newton over alleged infringement by Beastie Boys

NEW YORK -- While the fight over how much of a sound recording can be legally sampled continues in the No Limit Films case, the challenge by jazz flutist James W. Newton over alleged infringement by Beastie Boys of a musical composition ended in Washington, D.C.

The U.S. Supreme Court on June 13 denied Newton's petition to review the case.

The suit, filed in 2000 in the U.S. District Court in Los Angeles, claimed that a sample used by the Beasties in their 1992 recording "Pass the Mic" infringed Newton's composition "Choir." Although the Beasties licensed Newton's sound recording before releasing their song, they claimed that the six-second sample of the underlying composition -- consisting of only three notes -- was too small to require a license under copyright law, even though it was looped more than 40 times in their song.

The District Court agreed with the group and in 2002 granted summary judgment. Newton appealed; the Ninth Circuit Court of Appeals also sided with the Beasties in 2003. The court held that the amount of the composition sampled was too small to be unlawful; it was a lawful "de minimis" use.

Newton petitioned the three-judge panel to reconsider its decision or to hold a rehearing en banc -- with the participation of all active Ninth Circuit judges. On Nov. 9, 2004, the appellate court denied the request, but it also amended -- and republished -- its year-old opinion.

At the time, Beastie Boys' attorney Ken Anderson with Loeb & Loeb in New York said the changes in the opinion appeared minimal and, if anything, strengthened the court's original position.

With the Supreme Court's refusal to review the case, the suit is over.

Meanwhile, No Limit Films on June 16 filed a petition for an en banc hearing by the Sixth Circuit Court of Appeals over a two-second sample of a Funkadelic sound recording. This petition comes 13 days after a three-judge panel on June 3 reaffirmed its earlier decision finding an infringement.

The case revolves around N.W.A's sample of a Funkadelic guitar solo for "100 Miles and Runnin'," part of the soundtrack to the 1998 film "I Got the Hook Up," produced by Master P's No Limit Films. Although a license was obtained for the composition, a license to use the Funkadelic recording was never obtained from owner Westbound Records.

In response to a copyright infringement suit filed by Westbound, No Limit claimed that copyright law does not require a license for the sampling of such a small, "de minimis" portion of a recording. The Sixth Circuit Court of Appeals in Nashville disagreed, and on Sept. 7 created a "new rule": two seconds sampled from a recording constitutes copyright infringement, even if the amount used is too small to infringe the underlying composition.

No Limit filed a petition on Sept. 21 requesting a rehearing by the same judges or an en banc hearing by the entire panel of federal judges in that circuit. The Recording Industry Assn. of America filed an amicus (friend of the court) petition supporting No Limit, claiming that the court misapplied copyright law as it pertains to recorded music.

The original three-judge panel agreed to reconsider the case, noting at the time that the "issues raised in the petition and supporting amicus brief are worthy of additional consideration."

While the court amended its opinion, it did not change the holding that the two-second sample was an infringement. However, the court noted that the District Court could consider the fair use defense.

No Limit's attorney, Robert Sullivan with Loeb & Loeb in Nashville, hopes that the entire panel will decide to reconsider the decision.

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