dissenting:
I respectfully dissent. The majority has laid out correctly the legal principles that apply in this case, and I agree with the majority’s assumption that the sampled portion of “Choir” qualifies as “original” and therefore is copyrightable. Maj. op. at 1192. However, on the record before us, a finder of fact reasonably could find that Beastie Boys’ use of the sampled material was not de minimis. Therefore, summary judgment is inappropriate.
As the majority observes, a use is de minimis only if an average audience would not recognize the appropriation. Fisher v. Dees, 794 F.2d 432, 434 n. 2 (9th Cir.1986). The majority is correct that James Newton’s considerable skill adds many recognizable features to the performance sampled by Beastie Boys. Even after those features are “filtered out,” however, the composition, standing alone, is distinctive enough for a fact-finder reasonably to conclude that an average audience would recognize the appropriation of the sampled segment and that Beastie Boys’ use was therefore not de minimis.
Newton has presented evidence that the compositional elements of “Choir” are so compositionally distinct that a reasonable listener would recognize the sampled segment even if it were performed by the featured flautist of a middle school orchestra. It is useful to begin by observing that the majority’s references to the sampled segment of “Choir” as a “3 note-sequence”1 are overly simplified. The sampled segment is actually a three-note sequence sung above a fingered held C note, for a total of four separate tones.2 Even passages with relatively few notes may be qualitatively significant. The opening melody of Beethoven’s Fifth Symphony is relatively simple and features only four notes, but it certainly is compositionally distinctive and recognizable.
The majority, while citing the correct standard of review, fails fully to apply it. First, the majority usurps the function of the fact-finder by weighing the opinions of the various experts and emphasizing some parts of their testimony over others. Maj. op. at 1194-95, 1196. The majority also fails to interpret the evidence in Newton’s favor when, for example, it asserts that Newton’s experts failed to distinguish between the sound recording and the composition. Id. at 1196. To the contrary, Newton presented expert evidence that the composition alone is distinctive and recognizable.
First, Newton offered a letter from Professor Oily Wilson of the University of California at Berkeley. Professor Wilson acknowledges that much of the distinctiveness of the sampled material is due to Newton’s performance and that the copyrighted score does not fully convey the quality of the piece as performed. Nevertheless, Professor Wilson concludes that the score
clearly indicates that the performer will simultaneously sing and finger specific pitches, gives a sense of the rhythm of the piece, and also provides the general structure of this section of the piece. Hence, in my opinion, the digital sample of the performance ... is clearly a realization of the musical score filed with the copyright office.
Second, Newton presented a letter from Professor Christopher Dobrian of the Uni*1198versity of California, Irvine, which concludes:
Applying traditional analysis to this brief excerpt from Newton’s “Choir”— i.e., focusing solely on the notated pitches — a theorist could conclude (erroneously, in my opinion) that the excerpt contains an insignificant amount of information because it contains a simple “neighboring-tone” figure: C to D-flat and back to C.... If, on the other hand, one considers the special playing technique described in the score (holding one fingered note constant while singing the other pitches) and the resultant complex, expressive effect that results, it is clear that the “unique expression” of this excerpt is not solely in the pitch choices, but is actually in those particular pitches performed in that particular way on that instrument. These components in this particular combination are not found anywhere else in the notated music literature, and they are unique and distinctive in their sonic/musical result.
(Emphasis added.)
Professor Dobrian is not talking about Newton’s performance of the sampled portion. Rather, he is speaking of the distinctiveness of the underlying composition. The “playing technique” is not a matter of personal performance, but is a built-in feature of the score itself. In essence, Dobri-an is stating that any flautist’s performance of the sampled segment would be distinctive and recognizable, because the score itself is distinctive and recognizable.
The majority, then, reads the record selectively when it states that Newton failed to offer sufficient evidence that the sampled material is qualitatively significant. In fact, Newton presented evidence, as described above, to show that an average and reasonable listener would recognize Beastie Boys’ appropriation of the composition of the sampled material.3
The majority also asserts that Newton failed to offer evidence to rebut Beastie Boys’ expert on the question whether the sampled section of “Choir” is qualitatively significant. Maj. op. at 1196. Again, the majority improperly discounts, or improperly interprets, Dr. Dobrian’s unequivocal description of the sampled passage: “These components in this particular combination are not found anywhere else in the notated music literature, and they are unique and distinctive in their sonic/musical result.” A fact-finder would be entitled to find either that the sampled passage is trivial and trite (Beastie Boys’ expert) or, instead, that it is “unique and distinctive” in the musical literature (Newton’s expert).
Because Newton has presented evidence establishing that reasonable ears differ over the qualitative significance of the composition of the sampled material, summary judgment is inappropriate in this case. Newton should be allowed to present his claims of infringement to a fact-finder. I therefore dissent from the majority’s conclusion to the contrary.
*1199APPENDIX
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. Maj. op. at 1190, 1195.
. The sampled segment of the composition is scored as shown in the Appendix.
. Because Newton has established that a fact-finder reasonably could find that the sampled portion of “Choir'' is qualitatively significant, we need not address the question of the portion's quantitative significance. See Worth v. Selchow & Righter Co., 827 F.2d 569, 570 n. 1 (9th Cir.1987) (noting that “a determination of the qualitative importance of the material to the plaintiff's work is more significant than a quantitative calculation of the portion allegedly appropriated by the defendant'').