Licensing the sound recording is not enough. A sampler who clears rights with the record label still faces potential infringement liability to the composer of the underlying musical work. Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2004), establishes this clearly. The Beastie Boys licensed the sound recording of James Newton’s “Choir” from ECM Records. They did not separately license the musical composition. The Ninth Circuit held that the composition elements of the sampled passage were de minimis — but the broader holding on the two-license structure is the reason the case matters.
The sample and the two licenses
James Newton is a jazz flautist and composer. “Choir” was recorded for ECM Records and released in 1978. The composition copyright belongs to Newton. The sound recording copyright belongs to ECM. These are two distinct intellectual property rights, held by two different parties, each requiring a separate license for commercial use.
The Beastie Boys sampled a six-second segment of “Choir” for their 1992 song “Pass the Mic.” They obtained a license from ECM for the sound recording. They did not contact Newton or obtain a license for the musical composition. When Newton discovered the sample and sued, the question was whether the unlicensed musical composition elements of the six-second passage were protectable and substantially similar to what appeared in “Pass the Mic.”
The de minimis finding on the composition
The Ninth Circuit found in favor of the Beastie Boys on the composition claim, but not on the theory they argued most prominently. The court performed the required analysis: identify the musical composition elements of the sampled passage (as distinct from the performance and production elements captured in the sound recording), and ask whether those elements, standing alone, constitute actionable copying.
The six-second passage consisted of Newton sustaining a C note in his voice while playing a C-D-flat-C flute phrase — a technique involving cross-fingering and singing through the instrument simultaneously. The court found that the notation of this phrase, stripped of the performance techniques that give it its sonic character, was a three-note sequence using a minor second interval. That interval and that phrase were not Newton’s original creation in any meaningful sense. The composition elements, on the court’s analysis, were de minimis — so minimal in their protected content that the Beastie Boys’ use was not actionable even without a license.
Newton lost on the composition claim. But the case established the two-license requirement with precision that Bridgeport and other sampling cases had not addressed.
The two-license rule and why it matters
Every recorded song involves at least two distinct copyright interests. The musical composition — the notes, the melody, the structure, the lyrics — belongs to the songwriter or their publisher. The sound recording — the specific fixed performance as captured in a recording session — belongs to the recording artist or their label. These are separate rights under 17 U.S.C. §§ 106 and 114.
A sampler who licenses only the sound recording has addressed only the label’s interest. The composer retains a separate, independent copyright in the underlying musical work. A single license is not enough. The sampler needs a master use license from the recording rights holder (typically the label) and a synchronization or mechanical license from the composition rights holder (typically the publisher or songwriter). Newton v. Diamond makes this structure explicit and enforceable.
The practical consequence is significant for anyone who samples archival recordings where the composition and recording rights have been split — jazz recordings, older pop recordings, classical works — or where the label relationship makes the recording license easy to obtain while the composition rights are held by a separate party. Easy access to one license does not discharge the obligation to obtain the other.
The forensic musicology question
The Ninth Circuit’s analysis of the composition elements in the six-second passage illustrates a skill that forensic musicology specifically addresses: the ability to separate what the recording captured from what the composition contained. Newton’s performance technique — the multiphonic effect of simultaneously singing and playing in parallel — is a performance element. It lives in the sound recording. The notation of the underlying phrase is what the composition copyright protects.
When a sampler licenses the recording and is then sued by the composer, the forensic question is: what does the composition deposit show, and are those elements present in the defendant’s work in more than a de minimis amount? That analysis requires musical training and knowledge of the notation versus performance distinction. It is not a question a lay listener can answer reliably by ear.
The musical analysis is mine. Legal advice is your attorney’s.