Plaintiff brought a copyright infringement action against the Beastie Boys alleging unlawful sampling of 6 pieces of plaintiff's music in five Beastie Boys songs that appear on two Beastie Boys albums (Paul's Boutique and Licensed to Ill). Defendants moved to dismiss for failure to state a claim under Rule 12(b)(6).
The Court agreed with plaintiff that the standard for determining substantial similarity was "fragmented literal similarity", rather than "ordinary observer" standard. Under the "fragmented literal similarity" standard, the question was whether the copying went to trivial or substantive elements. Thus, the "real question" for the Court was whether Plaintiff had alleged that each sample was "quantitatively and qualitatively important to the original work such that the fragmented similarity becomes sufficiently substantial for the use to become an infringement." Under the quantitative analysis, the concept of de minimis copying is relevant. Also, the analysis is of the original song -- not of the use in the allegedly infringing song; therefore, the Court was not persuaded by Plaintiff's allegation in its original complaint that the samples were concealed to a casual listener of the Beastie Boys' songs. Thus, the Court then went on a song-by-song analysis, which included a discussion of whether the sampled portion was even copyrightable material, and dismissed four of the claims based on 4 of the samples. Lastly, under the statute of limitations, the Court also limited the surviving claims to infringements occurring after May 2009 (3 years before the suit was filed).