RPL Partner Larry Brocchini Discusses Recent Ruling for Madonna on “De Minimis” Copyright Sampling in Vogue

Recently, a divided panel of the Ninth Circuit Court of Appeals affirmed a copyright decision in favor of the pop star Madonna.  The plaintiff, VMG Salsoul, LLC, alleged that Madonna and producer Shep Pettibone improperly copied a 0.23 second segment of horn hits from Salsoul’s song Love Break and used a modified version of that snippet when recording their 1990s hit song Vogue.

The Court found that Vogue’s use of the brief sampling of the horn segment did not violate copyright laws.  In its Opinion, the United States District Court for the Central District of California applied the longstanding legal rule that “de minimis” copying does not constitute copyright infringement and held that—even if Salsoul had proved actual copying—the claim failed because the copying was trivial.

The Ninth Circuit affirmed the lower court’s decision in Madonna’s favor, and the panel’s majority also held that any copying that occurred was “de minimis” and was not an infringement of either the composition or the sound recording of Love Break, because a general audience would not recognize the brief snippet in Vogue as originating from Love Break.  The majority’s decision also rejected the argument that Congress eliminated the “de minimis” exception to claims alleging infringement of a sound recording, in contrast with the Sixth Circuit Court of Appeals’ 2005 holding in Bridgeport Music, Inc. v. Dimension Films, but in line with the leading copyright treatise (David Nimmer) and several district courts.

Producers, writers and performers considering the use of sampled materials should consult with a qualified attorney experienced in this area before doing so.  For additional information, please contact Reavis Parent Lehrer LLP Partner Larry Brocchini, who regularly counsels clients in copyright and intellectual property matters.

A copy of the Ninth Circuit’s decision in VMG Salsoul v. Ciccone, ___ F.3d ___, Nos. 13-57104 14-55837, 2016 WL  2016 WL 3090780  (9th Cir. June 2, 2016) can be found here.  The Sixth Circuit’s Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), decision can be found here.

This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. Larry Brocchini would be pleased to consider providing additional details or advice about specific situations.