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for the Southern District of New York

Court Dismisses in Part Copyright Infringement Claim Over Sampled Music

In a September 10, 2013 ruling, Judge Alison J. Nathan granted in part defendants' motion to dismiss plaintiff TufAmerica, Inc.'s copyright infringement action.  TufAmerica, which is "the putative exclusive administrator and copyright licensee of a number of copyrights to the compositions and sound recordings of the musical group Trouble Funk," sued the individual members of the Beastie Boys and others, alleging that the group "unlawfully sampled a number of Trouble Funk's songs on the Beastie Boys' hit albums Licensed to Ill and Paul's Boutique."  TufAmerica's amended complaint asserted copyright infringment claims for six acts of unlawful sampling in Beastie Boys songs, and in particular that the samples "infringed both the musical composition and the sound recording of the sampled Trouble Funk songs." 

In analyzing whether the accused songs were substantially similar to the sampled songs for copyright infringement purposes, Judge Nathan applied the "fragmented literal similarity" test under which the Court examines whether there is "'localized' rather than 'global' similarity between the two pieces."  Applying this test, the Court noted that "'the question of substantial similarity is determined by an analysis of "whether the copying goes to trivial or substantial elements' of the original work.'"  Further, Judge Nathan wrote that the "real question" at the motion to dismiss "stage -- more so than the question of how to label the relevant test -- is whether (as to each sample) Plaintiff has plausibly alleged that the sample is quantitatively and qualitatively important to the original work such that the fragment similarity becomes sufficiently substantial for the use to become an infringement."

Judge Nathan then analyzed each of the five samplings.  The Court found fact questions as to whether two of the samples were quantitatively and qualitatively significant enough to support an infringement claim, that one of the samples was not copyrightable since it consisted merely of a common sound effect for a falling object, and that three of the samples were not significant enough as a matter of law to constitute copyright infringement.

Finally, the Court considered the defendants' argument to limit damages by applying the injury rather than discovery rule to the accrual of damages under 17 U.S.C. § 507.  Judge Nathan noted the split in the district as to which rule applies but found the majority adopting the injury rule, and likewise adopted that rule.
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