Somewhere in that title should be the word sporadic. But anyway here's a definition of de minimis (from Wikipedia): "a Latin expression meaning about minimal things, normally in the locutions de minimis non curat praetor ("The praetor does not concern himself with trifles") or de minimis non curat lex ("The law does not concern itself with trifles").
Newton v. Diamond (2005, 9th Circuit) and Bridgeport Music, Inc. v. UMG Recordings, Inc.
The court affirmed the lower court’s (District Court for the Central District of California) grant of summary judgment for the defendants. Both the District Court and the 9th Circuit found that the sampling in question (a 6 second clip featuring three notes) lacked sufficient originality to be protected by copyright and that the use of the clip by the defendants was de minimis. In finding that the use of the clip was de minimis the court stated that “no reasonable juror would find the three-note portion of the composition used by the [defendants] was a quantitatively or qualitatively significant portion of the composition as a whole.” While the prosecution showed evidence that the technique used in the performance was unique to the original performer (the “Newton technique”) that because the defendants had licensed the sound recording what was in question was whether they, the defendants, had infringed on the original composition. Both courts found that the defendants had not infringed on the original composition because the clip that they had used was de minimis.
Based on this case, and the case of Bridgeport Music, Inc. v. UMG Recordings, Inc. from the Sixth Circuit Court of Appeals, in deciding whether a case of infringement is de minimis or not the courts use the test that a work is de minimis “only if the average audience would not recognize the appropriation.” In the case of Newton v. Diamond the court ruled that it was de minimis use not just because the sample used was relatively short in length but because an average listener wouldn’t know that the sample had been taken from a different larger work. In the case of Bridgeport Music, Inc. v. UMG Recordings, Inc. the court found in favor of the plaintiff because the section that had been sampled, while relatively brief, is widely known to the general public and is considered one of the most sampled pieces of music within the rap genre. As such the general rule of thumb within the courts in declaring whether or not a work is de minimis is whether a general audience would be able to distinguish the work if it were copied and then incorporated into another work. “Even if the similar material is quantitatively small, if it is qualitatively important the trier of fact may properly find substantial similarity” (from Nimmer on Copyright) and the inverse is true for finding a work de minimis. Ultimately whether a work is de minimis or not is up to the specialist reviewing the work.
