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Not every legal opinion contains a juicy rhyme like “Skills to Pay the Bills,” but when the defendants are the Beastie Boys, it seems appropriate. Last week, the 9th U.S. Circuit Court of Appeals decided in favor of the band in Newton v. Diamond, 04 C.D.O.S. 10036, an amended ruling denying en banc consideration of an earlier decision. The original majority opinion was written by Chief Judge Mary Schroeder. She was joined by Senior Judge David Thompson. Judge Susan Graber dissented. The case is not just a big victory for the most famous white rappers this side of Eminem. It’s also an important development for any fan of rap and other music genres because it protects artists’ ability to sample. The Beastie Boys and other rappers pioneered the use of sampling — taking a piece of music recorded by someone else and using it as part of a new song. At issue in Newton was a flute sample written and played by jazz musician James Newton. The Beastie Boys paid Newton to use the sample in one of their songs. But they didn’t license the underlying — and also copyrighted — composition. Central District of California Judge Nora Manella granted summary judgment in favor of the Beastie Boys, and the 9th Circuit agreed with her ruling that the rapper’s use of the sample was de minimis — a listener would not be able to recognize the sample as Newton’s composition. Graber disagreed and accused her fellow panelists of failing to apply the correct standard of review. Maybe Graber should have heeded the advice of another Beastie Boys song — “Lighten Up.”

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