Note

Return of the De Minimis Exception in Digital Music Sampling: The Ninth Circuit’s Recent Holding in VMG Salsoul Improves Upon the Sixth Circuit’s Holding in Bridgeport, but Raises Questions of its Own

Francesco Di Cosmo

A circuit split has developed over the recognition of a de minimis exception for unlicensed sampling of copyrighted digital recordings. In 2005, the Sixth Circuit opted not to recognize a de minimis exception in this field in Bridgeport Music, Inc. v. Dimension Films. Certain efficiency-based policy concerns do support the Sixth Circuit’s bright-line rulemaking approach in Bridgeport. However, the Court’s choice to ignore congressional intent in reaching its decision has been roundly criticized among commentators. The Ninth Circuit reached a conflicting decision in 2016 in VMG Salsoul v. Ciccone, where the Court did recognize a de minimis exception for unlicensed sampling of copyrighted digital recordings. In its opinion, the Ninth Circuit addressed the Sixth Circuit’s failure to consider congressional intent. Yet, in doing so, the Court adopted a test for de minimis use of copyrighted digital recordings which runs counter to efficiency-based concerns of copyright law.

This Note argues that while the Ninth Circuit’s opinion is persuasive in its legal analysis, the average audience test for de minimis use that follows from its ruling creates significant problems that do not exist under the Sixth Circuit’s bright-line rule prohibiting all unlicensed sampling. In response, this Note examines proposals for improving upon the average audience test.