good morning your honor good morning robert besser for the public as you noted due to matters here i'd like to briefly talk about the first which i consider the main appeal from the summary judgment motion wish to adopt to her or not i meant when i said should be controlling i meant to finish the sentence with should be if this court knows this quote should adopt the reasoning of the six circuit in bridgeport i believe  was more than a de minimus sample taken but starting with the first point as to the apple could whether or not bridgeport is applicable not in bridgeport it is said and it's opinion they were establishing a bright which the defendants rely on the newton versus diamond there were to sample there was a sample of the sound recording and of the composition and the beastie boys who sampled it went out and did the correct thing they licensed the sound recording sample because they wanted the the way it was performed and that's the essence of a sound recording it's the way it is performed and even though it was only three notes in in newton versus diamond the way that flute sound came out was something that was important to the beastie boys recording so they licensed it then the court said you did not have to license the composition because of the composition you were taking was only three notes in a it appeared only at the beginning of the song and if you removed those three notes from the song it wouldn't make any difference that it was the performance in that case that was the essence well anytime you have a sound recording which uses original musicians as is our sound recording that it seems to me that the performance is the essence now our part of our piece they use the what's been called the horn part or horn hit appeared more than once in our song and so the thinking was more substantial in that sense what what the defense argues is that it's only a second or a piece of a second that appears but because it was a live performance in our saw it appeared a number of times through the so and then when you sample it you just pick out the best one you want and you pick that little piece of electronically and you sample it so i would argue that even under de minimus we should have at least gotten a jury trial but put in pushing that aside let me let me ask before show up so i can be sure you're really arguing two things first of all you're arguing that that it isn't de minimus that's what you're arguing right over your first that it doesn't matter  rebut the arguments that yeah you're arguing ok but you're arguing that it isn't a matter of you just said well you know it was here and it's over here and i would argue both ok and then the other one is ok but even if it is diminished as we should adopt so there may be other claims that can be brought but isn't that the copyright claim dependent on the utilization of something original rather than the utilization of someone's time in labor that there may be other claims that say you took my time and labor without compensating me but that's not necessarily a copyright clash right because you originality the issue we never got as far as a trial i think i understand that performance in my composition that's way take it otherwise i would go out and get other horn players or something else to duplicate it which was their right and i think it's very important to emphasize that it is their right to go out and imitate the sound recording we're not saying that it's not then we would have the issue simply of the top position where they should have licensed it but where where you have horn players playing a part i think by definition it's original you will never get the same sampling but why isn't that some other wrong and not copyright infringement there is i don't know what other wrong it would be other than that you want a copyright in the in that particular record it's taking it in bridgeport it's words it's a taking of a physical more than an intellectual thing but nonetheless the one thing that congress decided to do effective not until nine hundred seventy two i think february first  with each piece on a different channel of the multi track tape but i i do maintain that that is by definition original you brought in players to play a particular part they played it and they used it throughout throughout the saw and they played it more than once throughout the song so it's an important part of the saw and i think the district court at some point your opinion indicated that it was an important vote but that's not that's not the issue the issue was was it important taken from our song or have other chords dealt with bridgeport music well decided that case and on a different grounds as that a trial court really the trial court had said well you don't have standing to bring a copyright infringement because you only had a two year license bridgeport the only case that deals with of and it's very and that i consider a very very important distinction because i think the beastie boys went out did the right thing i will say as a copyright lawyer that any time in musician walks into your office and says i want to take a piece of a sound recording you say go license it and that's basically what bridgeford said if you want to use it license it if you don't go in and get your own players and recreate it anyway  generally what most of which apply but seem to primarily rely on the reasonableness of whether or not the claim should have been brought and i think they're  support that any issued ever been raised as to ownership prior to the filing of the litigation simply wasn't there it simply wasn't done i submitted a declaration describing the settlement negotiations that went on beforehand and the had denied sampling and it said even if there were sampling it wouldn't be significant but there certainly was no issue raised at that point they put us on the fence at our notice i unreasonable to rely on bridge for it had been decided in two thousand and five it frankly was my understanding that it was controlling that if you wanted to use a sound recording you should have you should have license it and i don't think it's unreasonable taken to take the position that bridgeport should be controlling their so you're down to about three minutes i want to make sure you have some time for a bottle i  appeal my colleague richard bush who buys from a separate firm and represent defendant self pity bone and his music publishing company is going to argue the attorney's fees and like to reserve five minutes for mr bush to a that's it your honner doesn't that is the entire infringement case so what do you get it for free why do we get it for free you know i don't have to pay these people who performed it well let me start by saying on it that our side played for a fraction of a second the recording is also an original but even if it were originally the taking was de minimus infant has some it doesn't get any smaller than a fraction of a second bridgeport newton was a fan plain case it dealt with a composition because in that case i have my friend mr besser said the sound recording had been mice and but here's what this court said in considering the de minimus inquiry that it reflects the principle that the substantiality requirement applies throughout the law of copyright including cases of music sampling even when there is a high degree of similarity and the court recognized in newton that in a sampling case the similarity is going to be identical well that's because in a composition case you're dealing with substantial similarity you're not dealing with that in a in a sound recording case you're doing with an actual carbon copy what you are the substantial similarity an similarity analysis you have to look at the entire works at issue and in this case there's nothing other than that fraction of a second of the horn hit that v m d alleges is substantial and they say it was replicated several times sound recording and this is true for any sampling claim and again we deny sampling here but the allegation in this case is that at the three minute and thirty five second point in the love break recording which is the plaintiff recording which by the way actually shot petty bone is at minimum a coner of leave out to the side for a moment that fraction of a second at three thirty five which was copied into vogue according to their allegations not any of the other recordings of the hornet now when we're talking about the composition side and the de minimus argument there you would consider the other horn but when it when we're talking about the recording and sampling the only thing sampled was that one horn hit that they specifically identified so here's my question for you the supreme court in feist trying to distinguish as i understand it between the protection of the ideas and copyright or the originality and the protection of the sweat of the brow and it's said to copyright is not about the hat it's not about work it's about protecting originality what what other kinds of claims could someone bring when they have been sampled using the sweat of their brow if it's not protected by copyright your own i'm not sure there are other there are other claims they can bring i mean again are there tort claims for wrongful appropriation of property or things of that sort well not i think not if it would be preempted by the copyright owner now we have to talk about post nine hundred seventy two some recordings because that's what is protected by the copyright and you are correct that in five of the court said we're not going to talk about this one of the brown we're talking about originality and creativity and what feist was really saying was that you may have an entire work that's copyrightable but not every single element in that work is copyrightable and one chord in the entire love break recording is not copyrightable that's not to say that's a different question and i think it would depend again on how long is the recording and how distinctive is that recording and would an audience be able to say oh i recognize that that's that's a  performance but here first of all the sound recording snippet is so short you can barely even take it out let alone identify that over the years that that's played by the south soul orchestra and that sounds unique to me and that's part of the de minimus analysis as a whole because you look at the quantitative and qualitative significance of the sound recording that was sampled to the plaintiffs work as a whole while we're talking about this fraction of a second long sound recording snippet of a song that's almost eight minutes long and we're at somewhere around one sixteen hundred of the song that was taken and so i would submit to you that nobody would recognize that because there is there any place where that chord is played alone and i'm not the best listener in the world but it sounded to me me that there were so always an overlay of many other instruments and or  voices us at the same time has that chord is that right or wrong the what the plaintiff's allegation here ya know was that the horn sound was relatively isolated at that three minute and thirty five second point in love break and they say that's why the sample must have been taken from there i don't know if it was completely standing alone but that is their argument otherwise the horn in fact none of that raises a very important point the first time i heard both i couldn't even hear the horn has and they allege that it's that there's a horn hit in five or six different places in the recording but what they alleged in their complaint and this is know they said that the sampling was intentionally hidden and could only be detected by certain mechanical instruments which we later determined was waveform analysis this is looking at the  computer but that it was not detectable by the human ear and that's why they only brought their claim about twenty years after vogue had been released that's an admission that it's not recognizable and that is the test that if you're listening to vogue and you hear that horn would you be able to say oh yeah that comes from the plaintiff's work love brooke where this case go to trial would be a jury trial or a non jury trial i'm not certain if they made a if you have a situation where the question is how do how did minima says something is a demand i'm a citizen to diminish and the judge makes a decision the district judge makes a decision as a matter of  w one wonders if you if you have a stand gets or unchecked parole and or someone of that kind and you suggested even yourself in your response judge silberman well maybe that might make a difference is that a is that a jury question your honor it could be a jury question in turn cases it is not here the new case in the ninth circuit was on summary judgment and the court there this court said that we can make the determination the district court can listen to the two works and find that the taking was only de minimus and that's been done in many courts we've seen that if the cases are cited in a in our brief i do want to reserve time for my colleague to argue me attorney's fees if you know but in many circumstances the court itself upon listening to the music and taking the expert opinions into account crediting what the plaintiff's expert has to say can good morning richard bush behalf of mr pettibone just one thing i do want to mention beginning is that bridgeport specifically in its decision stated that it's only a put ability is where a ninth circuit case which which you argue if you don't argue colleague is controlling but it isn't really on all fours for sure we have no supreme court case that we can point to there are district court cases most of them actually support your position but there are a few that don't and then you have a six erkki case that doesn't support your position  at least in part so how is this so crystal clear that any reasonable lawyer would not have filed the suit for several reasons number  in fact the testimony was that the waveform analysis was inconclusive and so it was not assumed that sampling occurred for purposes of summary judgment because they did not submit evidence to suggest that it absolutely speaking only for myself i find it very difficult to say that it subjectively on reasonable to file a lawsuit when you have a case that is ninety nine percent on point from another  the sixth circuit and fact as mr best what i tell you i was the lawyer who represented bridgeport in the bridgeport case so i want to tell you also when six circuit is motown two right that's in detroit and bridge circuit and this bridgeport case has been on the books for what about eleven years in a in a big music area and it has never been followed by any court that i can fix followed in the sixth circuit it's fallen six or but it has never had this music companies  there are other facts you wanted that are very important i just want to very quickly address on the objective and was minus the point the principle of the plaintiff in this case actually was an engineer on vogue he himself was the person who worked on the post production we mixes and who in fact inserted into of into both samples that he then sued upon in other words the plaintiffs in this case worked on vogue was an engineer worked on post production remixes and he in fact was the one who put into post production remixes of both things he claimed within sampled when he purchased the sal soul catalog later so in other words he himself has incredibly unclean hands here and was responsible for things that he then alleged constitute copyright infringement in this very case casey the reason i urge the this court to adopt the the bridgeport case is that there there has to be a line with sound recordings if if you can take a little bit but not not too much you get into a situation where you are taking the creative efforts of someone else that's not well yeah sure response to the argument that bridgeport yes to admitted sampling in the sampling yes tonight here i don't believe that's really what bridgeport it is limited to the where you have a summary judgment where sampling is is  matter of fact just to read bridgeport to to require an admission by the defendant that they sampled with so limit the applicability of bridgeport as to be meaningless we we  eyewitness who said the sampling occurred when counsel said we had no evidence of sampling at that's that's just simply incorrect there was an eyewitness who is in the studio who watched the sampling take place there was we have an expert to finally after a huge debate struggle with the defense we got ahold of the actual multi track recordings and we could pick out the exact example that was taken from one of the tracks so that there's no question but that sampling occurred here certainly for purposes of summary judgment there were no it in bridgeport in terms of the fact i don't know whether it won't be on that but it does say because defendant does not deny we soon assume that the soundtrack well he didn't deny it and so that all that did was relieved mr bush from having to prove that th  would basically eliminate bridgeport as as a counsel wasn't sure and i don't know that it makes any difference at all but was is this when this had been a jury trial yes