Mashups: Should Innovation Excuse Infringement? (Part 2 in a Series)

In this post, the second in a short series, Frank Gonzalez continues to look at some of the issues surrounding one of the latest trends in the popular music arena, the mashup. Part 1, which introduced the popular music genre of the mashup as well as the copyright laws which presumably apply to it, can be found here. Today, some of the limitations on artist rights which courts have built into copyright law are discussed.

Limitations and Their Application

De Minimis Use

In Newton v. Diamond, the Beastie Boys did not obtain a license to use six seconds of a flutist’s composition prior to incorporating the authorized song recording of the piece into their song “Pass the Mic.” 1 Despite the copying in fact, the Ninth Circuit held that “the use must be significant enough to constitute infringement.” 2 Comparing the qualitative and quantitative significance of the copied portions of the composition to the Beastie Boys’ song, the court ruled that the use was de minimis, and therefore, inactionable. 3

However, the court noted, “a use is de minimis only if the average audience would not recognize the appropriation.” 4 Such an interpretation of the de minimis exception effectively limits the protection of mashups to songs that would be unrecognizable, which renders the exception little help to the genre that prides itself in mashing up notable songs of the past and present. Further, the court’s holding may be read to cover only the de minimis exception’s application to the underlying musical compositions, which is equally unhelpful to mashup artists because mashups consist of digital samples, not recreated musical compositions. 5 

If Newton did not foreclose the availability of the de minimis exception for mashups, Bridgeport certainly did. In Bridgeport, the court concluded that Section 114’s use of the word “entirely” precluded any unauthorized digital sampling. 6 The court stated that if “an artist wants to incorporate a ‘riff’ from another work in his or her recording, he is free to duplicate the sound of that ‘riff’ in the studio.” 7 However, as noted above, this authorization is of no use to mashup artists because they use the exact sound recording of a prior work. Therefore, in at least two circuits, the de minimis exception does not provide mashups with protection from infringement suits.

Fair Use

As mentioned above, the Copyright Act enumerates a number of exceptions to the exclusive rights of copyright owners. 8 Of particular importance to mashup artists is the fair use exception. 9 Section 107 provides that a work may be used in a number of ways, including “criticism, comment, news reporting, [and] teaching . . .” without being considered infringement. 10 The section continues on to provide the following set of factors to consider when determining whether a particular exploitation of a work constitutes a fair use:

(1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market or value of he copyrighted work.

In the next installment of the series, Frank will explore how fair use limitations might be applicable to the work of mashup artists.


1. See Newton, 388 F.3d 1189, 1190.
2. Id. at 1192-93.
3. See id. at 1196-97.
4. Id. at 1193.
5. See 88 N.C.L. REV. 639, 667.
6. See Bridgeport Music, 410 F.3d 792, 800-01.
7. Id. at 801.
8. See §§ 107-122.
9. See § 107.
10. Id.