Having Your Healthcare and Paying For It Too: The Use of Federal Funds at Planned Parenthood

Background

On December 14, 2017, as then-President Obama prepared to leave office, he issued a rule prohibiting states from withholding federal family-planning funds from health clinics that perform abortions, such as Planned Parenthood.  Four months later, on April 13, 2017, President Trump signed a bill reversing that rule.  These actions reflect an ongoing battle over funding for Planned Parenthood and similar clinics.

The Split

Following the release of controversial video footage in 2015, which purported to show Planned Parenthood officials trying to sell fetal tissue for profit, the Arkansas Department of Human Services terminated its Medicaid provider agreements with Planned Parenthood of Arkansas and Eastern Oklahoma.  Three Jane Does—Planned Parenthood patients—sued the Director of the Department under 42 U.S.C. § 1983, alleging that the Department violated their federal right to choose any “qualified” provider under the Medicaid Act.  The district court entered an injunction preventing DHS from suspending payments for services rendered to a class of Medicaid beneficiaries.  In Does v. Gillespie, the Eighth Circuit vacated the injunction on August 16, 2017.  It held that § 23(A) of the Medicaid Act does not create an enforceable right for patients to receive services from any “qualified” provider, and found three significant difficulties with such a contention.  First, it found that the Act is “two steps removed from the interests of the patients” seeking services from a provider through Medicaid:

“A statute that speaks to the government official who will regulate the recipient of federal funding ‘does not confer the sort of ‘individual entitlement’ that is enforceable under § 1983.’…Even where a subsidiary provision includes mandatory language that ultimately benefits individuals, a statute phrased as a directive to a federal agency typically does not confer enforceable federal rights on the individuals.”

Second, the Eighth Circuit found that it could reasonably conclude that Congress did not intend to create such an enforceable right under § 1983 because through the withholding of federal funds, Congress provided another means of enforcing a state’s compliance.  Third, the Eighth Circuit held that “statutes with an ‘aggregate’ focus do not give rise to individual rights.”

The Fifth, Sixth, Seventh, and Ninth Circuits disagree.  All have held that there is a right of action for enforcement of the Medicaid Act’s choice-of-provider provision.  The Seventh Circuit held in Planned Parenthood of Indiana, Inc. v. Commissioner of the Indiana State Department of Health (2012) that § 23(a) of the Medicaid Act “is individual-rights language, stated in mandatory terms.”  It continued:

“Although Indiana has broad authority to exclude unqualified providers from its Medicaid program, the State does not have plenary authority to exclude a class of providers for any reason—more particularly, for a reason unrelated to provider qualifications. In this context, ‘qualified’ means fit to provide the necessary medical services—that is, capable of performing the needed medical services in a professionally competent, safe, legal, and ethical manner. The defunding law excludes Planned Parenthood from Medicaid for a reason unrelated to its fitness to provide medical services, violating its patients’ statutory right to obtain medical care from the qualified provider of their choice.”

The Ninth Circuit agreed with the Seventh Circuit in Planned Parenthood Arizona Inc. v. Betlach (2013).  Notably, it found it “evident” that “Congress intended the free-choice-of-provider requirement to create an individual right.”

Looking Forward 

Whether there is an individual right to enforce the provision of the Medicaid Act allowing a patient’s choice of any “qualified” provider under 42 U.S.C. § 1983 is an issue ripe for review by the Supreme Court.  Given the Trump administration’s stance on women’s healthcare, including the rollback of President Obama’s last effort to safeguard federal family-planning funds for Planned Parenthood and similar clinics, this is a highly contentious and controversial issue.

Planned Parenthood is a politically, religiously, and emotionally charged subject in the U.S. culture war, and is often a partisan matter.  In 2012, the Obama administration filed an amicus brief in support of the organization in Planned Parenthood of Indiana.  The Trump administration’s differing position, combined with the addition of Justice Gorsuch on the Supreme Court, make this an even more prominent issue.  The dissent Justice Gorsuch wrote in Planned Parenthood Association v. Herbert (10th Cir. 2016) leave many “freedom of choice” supporters fearful of the accessibility of women’s healthcare options in the future.

Here’s a Tip: Deciding if Dual Jobs Qualify for “Tip Credit”

The Issue

Working as a server requires an individual to handle a vast array of responsibilities, often for minimal compensation. Balancing a tray full of food, anticipating when drinks need to be refilled, serving as a liaison between the kitchen and customers, and performing all other duties as assigned can really wear on a person, especially when customers don’t realize that their tips make up a large percentage of a server’s income. Recently, the compensation for these “other duties” have been causing cases to come out of the frying pan and into the fire.

Under 29 USC §203(m), employers with “tipped employees” (employees who make $30 per month or more in tips) are allowed to count tips as a part of an employee’s salary, and thus can pay these employees a lower base salary. Tips are counted as “tip credit” towards the employee’s monthly salary. Cumbie v. Woody Woo, Inc. (9th Cir. 2010). As long as the base salary is adjusted so that, when combined with monthly tips, it evens out to the requisite minimum wage, and employer has met his or her legal duty.

The issue is that some employees serve “dual jobs” (performing the tasks of both a tipped and non-tipped employee). Under 29 C.F.R. § 531.56(e), there is a provision noting that time spent on “related duties” can be counted towards the tip credit. The Department of Labor, in FOH § 30d00(f) (2016), has stated that if an employee spends more than 20% of their time serving in the non-tipped position, then the work done in said position cannot be factored into tip credit and the employee must be paid the legal minimum wage. In Marsh v. Alexander LLC, (9th Cir., 2017), the Plaintiff alleged that he performed duties unrelated to generating tips during more than 20% of his work hours, but his employer claimed a tip credit for the work.

The Split

The Eighth Circuit

The Eighth Circuit addressed this issue in Fast v. Applebee’s Int’l, Inc., (2011), where they stated that the Department of Labor’s interpretation of FOH § 30d00(f) was ambiguous, but that the 20% margin was ultimately a reasonable interpretation, holding “[t]he 20 percent threshold used by the DOL in its Handbook is not inconsistent with § 531.56(e) and is a reasonable interpretation of the terms ‘part of [the] time’ and ‘occasionally’ used in that regulation.”

The Ninth Circuit

The Ninth Circuit, in Marsh v. Alexander LLC, (2017), states that the Eighth Circuit failed:

“…to grapple with the crucial question whether the FOH’s time sheet approach is a reasonable interpretation of ‘job’ (in the regulation) or ‘occupation’ (in the statute),”

and

“…that in order for an employee to be engaged in two different occupations there must be a clear dividing line between two different types of duties, such as when one set of duties is performed in a distinct part of the workday.”

In Marsh, the Ninth Circuit held:

“…no provision with the force of law permits the DOL to require employers to engage in time tracking and accounting for minutes spent in diverse tasks before claiming a tip credit.”

Looking Forward

The appropriate calculation for minimum wage has been hotly debated. The outcome of this circuit split will better define how tipped workers are to be compensated for their work. The courts will have to analyze whether the 20% rule is a justifiable standard for compensating tipped workers for non-tipped tasks.

Negotiate and Chill: How (and Whether) The Time for Plea Negotiations Can Be Excluded Under the Speedy Trial Act

Background

The Speedy Trial Act requires that any information or indictment charging a defendant with an offense must be filed within thirty days from an individual’s arrest or summons in connection with the crime. 18 U.S.§ 3161 (b).

This means that the government has thirty days from the time someone is arrested or summoned to charge that person with a crime.

However, certain periods of time—or delays—can be excluded from the Speedy Trial thirty days. For example, under 18 U.S. § 3161(h)(1), delays “resulting from other proceedings concerning the defendant” can be excluded. The statute gives a non-exhaustive list of eight delays that would count as “resulting from other proceedings”:

(A) determining “mental competency or physical capacity”

(B) trial related “to other charges against the defendant”

(C) interlocutory appeals

(D) pretrial motions

(E) the transfer of the case or removal of a defendant

(F) transportation of a defendant if not unreasonable

(G) a court consideration of a proposed plea agreement

(H) proceedings “under advisement by the court”

Delays “resulting from other proceedings concerning the defendant” are automatically excludable from the Speedy Trial thirty days.

But a delay can still be excluded under other provisions in § 3161, such as (hint) 18 U.S. § 3161(h)(7), under which a delay resulting from a continuance granted to serve “the ends of justice” can be excluded. To be excluded, the reasons the delay serves “the ends of justice” must be set in the record.

The Split

As you might imagine, the real fights happen in the “including, but not limited to” space created by 18 U.S. § 3161(h)(1). For example, circuits cannot come to an agreement on whether plea negotiations are automatically excludable as “resulting from other proceedings concerning the defendant.”

The Second, Fifth, Ninth, and Eleventh Circuits have held that delays resulting from plea negotiations are only excludable under § 3161(h)(7)—where the judge makes findings on the record that the delay serves “the ends of justice.”

These Circuits determined that automatic exclusion only works for delays related to official judicial proceedings because those enumerated examples in 18 U.S. § 3161(h)(1) all relate to official judicial proceedings. The Eleventh Circuit in United States v. Mathurin (2012) stated that:

“'[P]lea negotiations’ are informal discussions between the parties and are directly controlled by the parties, not the court.” (quoting United States v. Lucky (2d Cir. 2009)).

Thus, the court held, plea negotiations are only excludable if the judge makes findings on the record that the delay serves “the ends of justice.”

On the other hand, the Fourth, Seventh, Eighth, and Sixth Circuits have held that delays resulting from plea negotiations are automatically excluded as “resulting from other proceedings concerning the defendant.” The Sixth Circuit, in United States v. White (2017) held that:

“Although the plea-bargaining process is not expressly specified in § 3161(h)(1), the listed proceedings ‘are only examples of delay ‘resulting from other proceedings concerning the defendant’ and are not intended to be exclusive.”

Takeaways

This split is ripe for Supreme Court review and a cert petition is pending.

It is important for the split to be resolved because defendants should be treated the same across jurisdictions. Also, what good is the Speedy Trial Act if defendants are unsure when they will be charged or how the Speedy Trial Act applies to their situation?

Although a look into statutory construction could resolve this split, interesting policy perspectives are at play regarding plea bargaining incentives—how would automatic exclusion of plea negotiations influence the parties to come to an agreement, if at all?

Whether plea agreements are automatically excludable or not, though, it is certainly better that everyone know for sure.

One Meeting Under God?

Background

Prayer in the United States has been contentious ever since it was forbidden in schools. Although over half of Americans say they pray daily, the Supreme Court, in Engel v. Vitale, ruled that public school students cannot be required to begin their day with a nonsectarian prayer . Across the nation, numerous local, county, and state officials take their opening time allotted to them to pray. These prayers are often sectarian in nature.

The argument around prayer in these public institutions stems from the Establishment Clause of the United States Constitution which states, “Congress Shall make no law respecting an establishment of religion.” Circuit courts are split on how to interpret the clause as it relates to the often sectarian prayers that open meetings. The split boils down to whether lawmakers are able to lead prayer in a sectarian manner.

Town of Greece v. Galloway

In Town of Greece v. Galloway, the Supreme Court ruled that prayer that was nonsectarian in nature could open meetings or sectarian prayer led by guest ministers was constitutional. They cited that the first Congress had a paid chaplain open the meeting, highlighting the history of prayer opening meetings. Additionally, they stated that the prayer “lends gravity to public business” to remind the legislatures that they should work towards a “higher purpose” instead of quibbling amongst themselves. The argument that the prayer was coercive in nature was dismissed because “legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.”

The Split: Does a lawmaker’s sectarian prayer violate the Establishment Clause of the US Constitution?

Fourth Circuit

The Fourth Circuit ruled that it does. In Rowan v. Lund County, a county in North Carolina had rotating prayer which the elected officials would lead in a clearly sectarian manner. No one other than the elected officials were permitted to offer the prayer. The court ruled that the practice caused the government to be aligned with Christianity with the risk that minority faith citizens would see it as a message of exclusion. They reasoned that although Town of Greece allowed for sectarian prayer from guests and volunteers, the “intimate government involvement” identified the government more strongly with that particular religion because the legislators were the only eligible people to deliver the prayer.

Additionally, the court looked at the audience of the prayers. While Town of Greece found that the intended target of the prayers were the legislators, the Fourth Circuit found that these prayers were intended for the audience and sought audience involvement rather than target specifically the legislators.

Because the audience was targeted and compelled to participate in the prayer, and because the prayers aligned the government with Christianity, the Fourth Circuit ruled that prayers given by lawmakers violated the Establishment Clause of the US Constitution.

Sixth Circuit

The Sixth Circuit took a different approach. In Bormuth v. County of Jackson, a county in Michigan held monthly meetings which were opened by the Commissioners with prayer. A member of the community did not follow Christianity, the religion of all Commissioners, and felt isolated and the Board of Commissioners would prejudice against him because of his beliefs. He voiced his concerns to the Board and was met with expressions of disgust and disagreement, confirming his fear. He filed suit later against the County for violating the Establishment Clause.

Much like the Fourth Circuit, the Sixth Circuit, looked at Town of Greece concerning whether the Commissioners’ prayer practice fell within the tradition of legislative prayer. Looking at the history of legislative prayer, the court rebuked the Fourth Circuit for not engaging the entire legislative prayer history as they had. They found that it was so commonplace that it has been “uninterrupted and continues in modern time.” They say that to strike down a prayer based on the deliverer is an absurd result because one prayer delivered by a minister would be permitted while the same prayer delivered by a lawmaker would be stricken down. To this end, the court holds that the prayers were well within the tradition of legislative prayer.

Next, the court looked to see if the content of the prayer was incompatible with the Establishment Clause. While disparaging and distinguishing the Fourth Circuit’s decision that the content of the prayer was against non-Christians as similar to those in Town of Greece, the court does not agree that one comment that was Christian in nature was enough to disparage nonbelievers. The court also considered that anyone may be elected to the board and lead a prayer in any way that they so choose once elected, adding to their argument that the content and make-up of the Board is irrelevant.

Although the court was unable to determine which coercion standard to apply from Town of Greece, they held that the prayers were not unconstitutionally coercive under either standard, so they did not need to resolve the issue.

Because the prayers were not coercive, not too-Christian in content, not affected by the Board’s composition, and not outside the scope of historic practices, the Sixth Circuit held that the County of Jackson did not violate the Establishment Clause of the Constitution.

Looking Forward

Prayer is a regular part of many town, county, and state meetings. These decisions will ultimately affect how those processes change depending on which jurisdiction the polity may find itself. To that end and due to the current Supreme Court’s enthusiasm with religious freedom cases, the Supreme Court is likely to grant cert. to these cases and settle whether the sectarian prayers are constitutional.

Liberty, Justice, and Handguns for All (in Washington): The D.C. Circuit Weighs In On Concealed Carry

Issue

Is the right to publicly carry a concealed weapon a “core” right protected by the Second Amendment? Gun rights activists throughout the District can celebrate, because the D.C. Circuit said yes. The court struck down the section of the D.C. Code that primarily limited concealed carry licenses to “those showing a good reason to fear injury to [their] person or property.”

The Evolution of Gun Laws in the District of Columbia

Over the last 40 years, the D.C. Council has attempted to establish gun restrictions on three separate occasions.

The first attempt – a complete ban on handgun possession – was struck down by the Supreme Court in District of Columbia v. Heller. In Heller, Justice Scalia analyzed the meaning of the words “keep and bear arms,” and noted that “the inherent right of self-defense has been central to the Second Amendment right.” Justice Scalia (quoting the D.C. Circuit in Parker v. District of Columbia) noted that “banning from the home the most preferred firearm in the nation to ‘keep’ and use for the protection of one’s home and family would fail constitutional muster.” Following Heller, most jurisdictions adopted the holding that the core right protected by the Second Amendment was the right for persons to keep firearms at home.

The Council’s second attempt – which allowed DC residents to possess handguns in their homes, but instituted a total ban on public carrying – was struck down by the U.S. District Court for the District of Columbia in Palmer v. District of Columbia. In Palmer, the court held that a blanket ban on carrying handguns in public was unconstitutional, but some restrictions on carrying handguns in public could be permitted.

The third attempt maintained a ban on publicly carrying a handgun, except for persons who could demonstrate a “good reason” to carry. This “good reason” statute was struck down by the D.C. Circuit in Wrenn v. District of Columbia. In Wrenn, the court noted that the “good reason” statute was effectively the same as a “total ban” for most citizens.

To meet the requirements of the “good reason” statute, applicants for a concealed carry permit would need to “show a special need for self-protection distinguishable from the general community.” The court found the phrase “distinguishable from the general community” problematic. The language of the statute barred most people from obtaining a license to carry, because only a small portion of the D.C. metropolitan community could distinguish their needs “from the general community.” Before Wrenn, the Washington Metropolitan Police Department rejected 77 percent of concealed carry permit applications for failure to show a special need for self-protection.

Taking into consideration the textual and historical analysis in Heller, the court held

“…the individual right to carry common firearms beyond the home for self-defense—even in densely populated areas, even for those lacking special self-defense needs—falls within the core of the Second Amendment protections.”

With this language, the D.C. Circuit became the latest circuit to join the split over whether carrying beyond the walls of the home is a “core” right protected by the Second Amendment. This may result in greater scrutiny of the “good reason” statutes in other circuits.

The Split

The D.C. Circuit joins the Seventh Circuit in holding that a ban on public carrying violates the Second Amendment. In Moore v. Madigan, the Seventh Circuit struck down the Illinois Unlawful Use of Weapons statute. While somewhat distinct from a “good reason statute,” the statute was effectively a total ban on public carrying, with very narrow exceptions for law enforcement officers, hunters, and members of target shooting clubs (among others). The court held that “confrontation [requiring self-defense with a gun] is not limited to the home.”

The First, Second, Fourth, and Ninth Circuits disagree (for a comprehensive overview of the decisions below, check out another one of our Sunday Splits blogs).

  • In Hightower v. City of Boston, the First Circuit held that the government “may regulate the carrying of concealed weapons outside the home” and upheld Boston’s “good reason” statute.
  • In Kachalsky v. County of Westchester, the Second Circuit declined to extend the reasoning in Heller to carrying outside the home. The court upheld New York’s “good reason” statute, which required applicants seeking to obtain a concealed handgun permit, to “demonstrate a special need for protection.”
  • In Woollard v. Gallagher, the Fourth Circuit held that a “good-and-substantial-reason” requirement could withstand constitutional muster, and upheld Maryland’s “good reason” statute.
  • In Peruta v. County of San Diego, the Ninth Circuit explicitly stated that “there is no Second Amendment right for members of the public to carry concealed firearms in public.”

The D.C Circuit’s decision casts a sharp split on the issue of whether concealed carrying in public is a core right protected by the Second Amendment. The decision struck down the very kind of statute –a “good reason” statute – that has been consistently upheld in sister circuits.

Looking Forward – The Future of Concealed Carry

The D.C. Circuit’s order went into effect on October 7, and residents of Washington, D.C. who pass a background check and a firearms safety test will be permitted to carry a concealed handgun. Some restrictions on concealed carry remain, including prohibitions on carrying firearms into federal buildings or around monuments.

Following the D.C. Circuit’s decision, “good reason” statutes could be challenged in other circuits and present an opportunity for the Supreme Court to rule on this issue. In particular, the D.C. Circuit’s qualification that handguns can be carried “even in densely populated areas” could lead to the arguably strict “good reason” statues being challenged in major cities, such as New York and Boston.

The Supreme Court declined to review the decision in Woollard, and D.C. officials stated that they would not petition the Supreme Court to review the decision in Wrenn shortly before the D.C. Circuit’s order went into effect. But in light of current events, stark administrative changes, and the D.C. Circuit’s decision, the time may be ripe for the Supreme Court to revisit “good reason” statutes and explicitly state whether the core of the Second Amendment protects the right to publicly carry a concealed firearm.

Is the Trump Travel Ban Still Moot? Why the Broader Issue of Executive Power is at Stake.

On December 8, 2015, then candidate Donald Trump called for what colloquially became known to some as a “Muslim ban.” Fast forward almost a full year later to January 27, 2017, when President Trump issued an executive order titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The order placed a temporary ban on immigration from seven countries that had been deemed to be terror prone by the Obama Administration. Almost immediately, an injunction was ordered barring the enforcement of the order.

In response, President Trump issued a “watered down” travel ban” on March 6, 2017. The new travel ban was less restrictive than the first ban, allowing immigration from Iraq, and containing an exemption for green card holders and people with permanent residency who were entering the U.S. from any of the other six countries. Despite the revision, the order was challenged in multiple lower courts, and eventually appeals were heard in both the Fourth and Ninth Circuits. Both courts ruled against allowing the “watered down” travel ban to go into effect.

The Supreme Court:

On June 26, 2017, the Supreme Court agreed to hear the appeals of those cases during its fall term. Most notably, they lifted the stays that the lower courts had placed on the travel ban, thereby allowing it to go into effect “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” Though a minor legal debate over the scope of the phrase “bona fide relationship” ensued, the decision to lift the stay until the Court heard the case at least signaled to some that the Court was likely to side with President Trump’s assertion of executive power.

 The Split

Though both the Fourth Circuit Court of Appeals and the Ninth Circuit Court of Appeals ruled against President Trump’s travel ban, each court differed in its reasoning. The Fourth Circuit’s decision was based on the premise that President Trump’s rhetoric during the campaign was evidence of his “anti-Muslim sentiment.” The decision went on to say that such discrimination in the form of an executive order violated the Establishment Clause of the First Amendment.

The Ninth Circuit’s decision to stay the ban was based on statutory grounds. They held that President Trump’s Executive Order violated the Immigration and Nationality Act (INA). The INA requires that a President provide reasoning for his or her decision to restrict immigration from certain countries, and the Ninth Circuit held that President Trump failed to provide such support for his order.

Looking Forward and why the Circuit Split Matters:

Recently, the Supreme Court removed the appeals of both of the above cases from its oral arguments calendar for the fall over the question of whether the issue was still moot. In light of both of the lower court decisions, President Trump issued a third travel ban, which added more countries to the list that bans entry and provided a much stronger rationale for the ban after citing an inter-agency review. Though there will likely still be grounds to challenge the new order, it is entirely possible that the Court will not find those new challenges persuasive and thus leave its decision to lift the stay in place.

If this were to happen, it would set up an interesting legal question over what to do with the lower court decisions. The Trump Administration will likely want the lower court decisions vacated because they restrict his authority. In particular, since the Fourth Circuit’s decision was based on constitutional grounds, it is the decision that has a far greater impact on the scope of executive power in the United States. Therefore, what the justices decide to do with the mootness issue and consequently the lower court decisions will play an important role in understanding how the justices view the scope of Trump’s executive power.

Copying Music is Not Vogue

The Issue

Have you ever listened to a song and recognized the melody? Perhaps you have heard something similar in another song? Your first thought might be “they copied my favorite artist!” And you might be right. However, if the appropriate license is obtained, it is completely legal.

Sampling is the “actual physical copying of sounds from an existing recording for use in a new recording, even if accomplished with slight modifications such as changes to pitch or tempo.”[1] Sampling is a common occurrence in the music industry. After all, there are only so many combinations we can come up with using nine notes. This is why sampling music is allowed when it licensed.

Now, try to remember if you’ve ever thought the same way about a particular note or a sound in a song. Probably harder to discern. So, what happens if a sound is sampled? Does that violate copyright laws? The Circuits are split.

The Split

The Sixth Circuit

In Bridgeport Music, Inc. v. Dimension Films, the Sixth Circuit took a hard “[g]et a license or do not sample” approach. In doing so, it created a bright-line rule:

For copyrighted sound recordings, any unauthorized copying constitutes infringement, no matter how trivial.[2]

The Court took a “literal reading” approach towards its interpretation of §§ 114(a) and 106 of Title 17 of the United States Code, concluding that while imitating or simulating “the creative work fixed in a recording” is permissible, making an actual copy of any of its contents not. To support its reasoning, the Court made an analogy to pirated music: “If you cannot pirate the whole sound recording, can you ‘lift’ or ‘sample’ something less than the whole.” The Court answered no.

Furthermore, the Sixth Circuit rejected a de minimis analysis for the following reasons:

  1. Adopting a de minimis analysis would require employment of “mental, musicological, and technological gymnastics.”
  2. Artists and recording companies have previously sought licenses “as a matter of course.”
  3. The record industry can work out its own guidelines.
  4. The new rule “should not play any role in the assessment of concepts such as ‘willful’ or ‘intentional’” in cases currently before the courts or in those already decided.
  5. “[T]here is no Rosetta stone” in interpreting the statute. As previously stated, a literal approach was taken to reading the statue. The Court, therefore, did not refer to legislative history because digital sampling was not done in 1971. Accordingly, if the record industry wanted a change, they can ask Congress for “a clarification or change in the law.”[3]

The Court, therefore, held that no de minimis inquiry was needed—where there was no authorization, infringement was established.

The Ninth Circuit

The Plaintiff in VMG Salsoul, LLC v. Ciccone alleged that a horn hit was sampled from his song “Ooh I Love It (Love Break)” (“Love Break”) in “Vogue” by Madonna. Interestingly, the person who recorded “Love Break” also recorded “Vogue” with Madonna. The horn hits are between 3:11 and 4:38, and from 7:01 to the end, at 7:46 in “Love Break” and at 1:14, 1:20, 3:59, 4:24, 4:40, and 4:57 in “Vogue.”

See if you can spot them:

https://www.youtube.com/watch?v=a_YmUoQKJRw

https://www.youtube.com/watch?v=GuJQSAiODqI

Here, the Ninth Circuit took a different approach.

First, the Court looked at the statute and concluded that Congress intended to limit, as opposed to expand, the rights of copyright holders.[4] In addition to its differing approach to statutory interpretation, the Ninth Circuit’s decision also was based on the fact that a de minimis exception has been applied “across centuries of jurisprudence.”[5] Thus, it was applicable in this dispute, directly in conflict with the Sixth Circuit’s holding.

Next, the Court looked to legislative history:

“…infringement takes place whenever all or any substantial portion of the actual sounds that go to make up a copyrighted sound recording are reproduced in phonorecords by … any … method, or by reproducing them in the soundtrack or audio portion of a motion picture or other audiovisual work. Mere imitation of a recorded performance would not constitute a copyright infringement even where one performer deliberately sets out to simulate another’s performance as exactly as possible.”[6]

Finally, the Court concluded that the legally protected interest is “the potential financial return from his compositions which derive from the lay public’s approbation of his efforts.”[7] “If the public does not recognize the appropriation, then the copier has not benefitted from the original artist’s expressive content. Accordingly, there is no infringement.”[8]

Therefore, in the Ninth Circuit, the “de minimis” exception does apply to copyrighted sound recordings. Put simply, if a lay person can’t recognize the similarity, there is not infringement.

Looking Forward

Depending on which jurisdiction you’re in, sampling a specific sound in a song may get you in trouble for copyright infringement. So, which approach is better: an authorization requirement for any sampling of a sound or just sounds the lay public can recognize?

[1] VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 875 (9th Cir. 2016).

[2] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).

[3] Bridgeport Music, 410 F.3d at 805.

[4] VMG Salsoul, 824 F.3d at 883.

[5] Id.

[6] H.R. Rep. No. 94-1476, at 106 (1976), reprinted in 1976 U.S.C.C.A.N. at 5721 (emphasis added).

[7] Arnstein v. Porter, 154 F.2d 464, 473 (2d Cir. 1946).

[8] VMG Salsoul, 824 F.3d at 881.