A recent post over at the Trademark and Copyright Law Blog (a great blog which I highly suggest you read) discussed a case from the Southern District of New York that addressed de minimis copying in copyright. And after reading it, I decided that we should touch on this defense here, because I think too often people don’t realize that some copies can be too small to be infringement.

So often when considering whether it is acceptable to use a copyrighted work, we focus on fair use alone. And certainly this makes some sense; fair use is the broadest exception to copyright, it has significant support both in statutory and case law, and people talk about it relatively frequently, especially compared to copyright’s other exceptions. However, it’s certainly not the only exception to copyright. Indeed, there are many other ways to use copyrighted works without violating the law.

The de minimis defense is the idea that some issues are too insignificant for courts to spend time on. Instead, courts should focus on the more substantive issues. the full phrase is “de minimis non curat lex” or “the law does not concern itself with trifles. In copyright, courts have said that we shouldn’t worry too much about tiny infringements. Even though it may definitely be a copy, and there is no other defense available, a little copy doesn’t deserve to constitute copyright infringement, because it’s so small.

Recently, there has been a question whether the de minimis defense should be used at all in copyright, at least when it comes to music sampling. Samples are often just tiny little bits of songs, taken and put together, to create new works. Consider for example, an album like Paul’s Boutique by the Beastie Boys. Working with the Dust Brothers as producers, the Beastie Boys cut, manipulated, and pasted a wide variety of samples from Johnny Cash to the Beatles, to create one of the best records of all time. Quality aside, however, people often say that this album could never have been made today, because of how difficult and expensive it would be to get the rights to use all of the samples in it. But maybe the de minimis defense is perfect for this kind of music. Many of the samples on the record are pretty short — maybe too small for a court to worry about.

However, there has been debate in the courts over whether the de minimis defense is available for this kind of copying. In 2004, the Beasties were sued over a sample from a different record, Check Your Head. In that case, the 9th Circuit found that a 3 second sample was de minimis and too insignificant to trigger copyright infringement of the underlying musical work from the sample. Meanwhile, a year later, the 6th Circuit found that a 2 second sample infringed of a sound recording. As the court wrote in that case “Get a license or do not sample.” There was no room for argument no matter how short the sample was.

Notably, these two cases focused on different parts of copyright law as it applies to music — that is, the difference between musical works and sound recordings. But, because the Bridgeport case dealt specifically and resolutely with sound recordings, it lead some people to declare de minimis for sampling basically dead. However, recently the 9th Circuit reignited the debate in a case involving a sample Madonna used in her song, Vogue (yet another great song!). In that case, the court held, in direct opposition to the 6th Circuit, that a sample of a sound recording could, in fact, be too small for copyright to worry about.

The important lesson is this: remember the de minimis defense as well as the other exceptions to copyright. Indeed, there are a number of exceptions within the statute itself beyond fair use, and we need to keep them in mind, as well as any common law defenses, when thinking about whether something is infringement or not. And maybe we should focus on the bigger issues, rather than wasting time worrying about “trifles.”