The U.S. Court of Appeals for the Sixth Circuit reaffirmed June 3 its decision that a two-second sample of a recording infringes the sound recording copyright.


NEW YORK -- The U.S. Court of Appeals for the Sixth Circuit reaffirmed June 3 its decision that a two-second sample of a recording infringes the sound recording copyright.

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 Films' attorney, Robert Sullivan with Loeb & Loeb in Nashville, said his client has not decided on the next course of action yet.

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