Bridgeport Music v. Dimension Films - Indiana University School of ...

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452 INDIANA LAW JOURNAL [Vol. 81:435 Significantly, the court also stated that the fact that “this case involves the practice of sampling prior music into a new composition does not alter this analysis.” 134 Despite all case law, statutory language, and legislative history to the contrary, the Bridgeport court of appeals seems determined to treat sound recordings differently than other categories of copyrightable subject matter, and to do so in a way that expands the rights available to sound recording owners beyond those of others. However, perhaps the most significant consequence of the new Bridgeport rule is that it intentionally eliminated the age-old copyright infringement doctrine of de minimis, and nearly accidentally eliminated the statutory defense of fair use. The next Part will consider these two defenses to copyright infringement, and the implications of the Bridgeport decision on each. IV. DEFENSES TO COPYRIGHT INFRINGEMENT In some cases, the defendant will admit to actual copying but argue, in regard to substantial similarity, that the use in question was de minimis. In other cases, the fair use doctrine provides a defense even where there is actual copying and substantial similarity, either admitted or proved. This Part will discuss these two defenses, their value, and the effect of the Bridgeport decision thereon. Subpart A will briefly discuss fair use. 135 Subpart B will discuss the de minimis doctrine and its intended demise with respect to sound recordings. A. Fair Use The fair use doctrine has a long history in U.S. copyright law, and is codified in section 107 of the Copyright Act of 1976. 136 The fair use doctrine provides that even if a person uses a copyrighted work in a way that would ordinarily constitute infringement, it will not be considered infringement under certain circumstances. 137 To determine whether the use made of a given work constitutes fair use, section 107 provides factors to consider, including: (1) the “purpose and character” of the use, including the commercial or noncommercial nature thereof; (2) the nature of the copyrighted work itself; (3) the qualitative and quantitative amount of the work used, in relation to the copyrighted work as a whole; and (4) the effect of such use on the copyrighted work’s potential market. 138 134. Id.; accord 4 NIMMER & NIMMER, supra note 88, § 13.03 [A][2], at 13–50 (stating that “[t]he practice of digitally sampling prior music . . . should not be subject to any special analysis”). 135. Fair use will not be discussed at length because the defense was not addressed in either the Newton or Bridgeport decisions. The affirmative defense of fair use was raised by Bridgeport defendant No Limit in its answer, and the district judge is free to consider it on remand. Brief for Appellee No Limit Films LLC for Panel Rehearing at 13, Bridgeport Music v. Dimension Films, 383 F.3d 390 (6th Cir. 2004) (No. 02-6521). As the analysis of fair use is relatively complex, a full discussion is outside the scope of this Note. 136. 17 U.S.C. § 107 (2000). 137. Id. 138. Id.
2006] ALL MIXED UP 453 While these factors are not exclusive, each of them represents a certain value judgment that is made relative to the value in the copyright itself. In general, copyright law attempts to balance the interests of authors in protecting their original works and the interests of the public in the free and open exchange of ideas. 139 The constitutional purpose of congressional copyright authority is “To promote the Progress of Science and the useful Arts . . . .” 140 The utilitarian underpinnings of American copyright law dictate that where the public good would not be served by the copyright monopoly, that monopoly should give way. 141 The fair use doctrine seeks to advance these policies, and thus each of the factors analyzed to determine fair use is necessarily a policybased, case-by-case analysis. The original decision of the court of appeals in Bridgeport did not mention fair use, but the tone thereof and the implications of the new “bright-line test” led many commentators to believe that the court was purporting to eliminate fair use with respect to sound recordings. 142 However, the court subsequently issued an order granting a panel rehearing and amending the first opinion. 143 Specifically, the court added a sentence to the final paragraph of the opinion indicating that there was no necessity to consider the affirmative defense of fair use, and the opinion was not intended to express any opinion as to its applicability. 144 It seems clear, however, that the court could not have actually eliminated fair use in regard to sound recordings because the defense is codified in section 107 of the Copyright Act of 1976, and section 106 says that the exclusive rights granted by that section are subject to the limitations in sections 107–122. 145 The court eliminated the defense that the copying in question was de minimis. As the next Subpart makes clear, fair use is not an adequate substitute for the de minimis doctrine—not only because fair use is far more complex, unpredictable, and expensive; but also because fair use does not serve the same policies as the de minimis doctrine. B. De Minimis The de minimis doctrine is not limited to copyright law; it applies in all civil cases. 146 De minimis comes from the phrase de minimis non curat lex, which is roughly 139. See Stewart v. Abend, 495 U.S. 207, 209 (1990); Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). 140. U.S. CONST. art. I, § 8, cl. 8. 141. See supra text accompanying notes 34–39; see also Landes & Posner, supra note 95, at 358 (“Only if the benefits of the use exceed the costs of copyrighted protection . . . is the no right/no liability solution of fair use defensible on pure transaction-cost grounds.”). 142. See, e.g., Brief of Amicus Curiae Recording Industry Association of America in Support of Petition for Rehearing, Bridgeport Music v. No Limit Films, No. 02-6521 (6th Cir. 2005); Brief of Amici Curiae Brennan Center for Justice at NYU School of Law and the Electronic Frontier Foundation in Support of Appellee, Bridgeport Music, Inc. v. Dimension Films, No. 02-6521 (6th Cir. 2005). 143. Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005). 144. Id. at 796. 145. See 17 U.S.C. §§ 106–107 (2000). 146. See supra note 5.
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