This article discusses how the district court in Newton v. Diamond could have provided the music industry with a path of reasonable determination via which the risk of infringement due to unauthorized digital sampling of a musical composition could be reasonably estimated and prudent licensing decisions made. At the very least, it illuminated a clue through its threshold determination of protectability. However, as the author explains, the court of appeals obscured that clue beneath a conundrum of de minimis use analysis, highlighting the need for courts to settle upon a clear and consistent standard for de minimis use analysis.
Susan J. Latham,
Newton v. Diamond: Measuring the Legitimacy of Unauthorized Compositional Sampling— A Clue Illuminated and Obscured,
26 Hastings Comm. & Ent.L.J. 119
Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol26/iss1/3