Fourth, as to whether enough material was used, we are missing some information. Was the figure from the Newton work a figure that was repeated in his work? Did the figure used constitute a melodic/rhythmic "hook" in the Newton work? Often, there is a question about how much of a tune was used — but I have never heard of this being asked in a sampling case. My boss and I have worked on cases where there was a trademarked/copyrighted sound constituting three notes and the people were successfully sued for using a direct sample of the sound. Historically, the sampling cases come down to a question of whether or not a sample was used, and the answer is usually definitively provided by digital editing systems.

Fifth, there is the question of how much use of it was made, although this usually goes towards the extent of the damages. It can play towards the determination of whether the case is a full-on copyright case or whether it is a case of the infringer creating a derivative work. In this case, the infringer apparently made his entire song out of the sample...

There are several good instances I can think of off hand where the use of three notes is protected. The big one that comes to mind is the use of the first three notes from "Over There." On one level, it is just three notes from a triad, but if you associate it with World War I you are in deep trouble...

One thought does come to mind: the SR copyright is often owned by the record company. They may have acted completely within their rights with regard to issuing the license for the sample. But that would not excuse the licensor from having to get Newton's permission as well, if he actually has his own publishing and control over his material.

I agree with you Tom. Something is missing. Either Newton hasn't communicated something, or he had an ass for an attorney, or he drew a complete ass for a judge. There's no way of telling from our vantage point....