Check your sample

The Ninth Circuit Court of Appeals denied to rehear en banc Newton v. Diamond, a case involving sampling. The Beastie Boys sampled a three-note clip with permission from the copyright holder in the phonorecord, but without permission from the composer. The court ruled that the recorded performance of the three-note segment was distinctive enough that the sampling required a license, while that the amount of the underlying composition used was de minimis and the Beastie Boys did not require a license for that use of the composition.
Newton v. Diamond, Nov. 9, 2004.
Compare the Sixth Circuit ruling in Bridgeport Music v. Dimension Films, Sept. 7, 2004, holding that any recognizable sample of recorded music requires a license, but does not address possible infringement of the underlying composition.
Are the circuits split or are the decisions reconcilable? Are other alternatives available?
Previously: Sampling without infringing
Reuters: U.S. Court Upholds Beastie Boys’ Musical Sampling