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June 2 — A sample taken from a disco song and used in Madonna's 1990 hit “Vogue” didn't infringe any copyrights because it was too small to be recognizable, the U.S. Court of Appeals for the Ninth Circuit ruled June 2 in a 2-1 decision ( VMG Salsoul, LLC v. Ciccone, 9th Cir., No. 13-57104, 6/2/16 ).
The ruling conflicts with other federal appeals court decisions, which have held that any amount of sampling from a recording is potentially infringing, even if it is too small for a listener to recognize.
Indeed, the majority acknowledged that it was “creating a circuit split” by ruling this way.
A sampling that is too small to be noticeable or recognizable is known as “de minimis” copying. There is an ongoing controversy over whether there is a de minimis exception to copyright infringement when it comes to a sound recording, as opposed to a musical composition.
It is already accepted that there might be a de minimis exception when it comes to copying small portions of many kinds of creative works. However, some federal appeals courts have said that, for sound recordings, no sample can be too small or insignificant.
This case began with “Chicago Bus Stop (Ooh, I Love It),” also known as “Love Break,” a disco song composed by Vincent Montana Jr. (1928-2013) in the mid-1970s and recorded in 1977.
Pop star Madonna—who was sued under her full name, Madonna Louise Ciccone—released the hit song “Vogue” in 1990. Shep Pettibone produced a 1983 recording of “Love Break” by the Salsoul Orchestra and also was the producer on “Vogue.”
In 2012, VMG Salsoul LLC, the company that now holds the copyright interest for “Love Break,” sued Madonna and several other people and companies involved in creating and releasing “Vogue,” alleging that a sample from “Love Break” used in “Vogue” was infringing.Source Material:
VMG Salsoul LLC v. Ciccone
Complaint: July 11, 2012
Amended Complaint: July 12, 2013
District Court Opinion: Dec. 2, 2013
A federal district court ruled that the sample was de minimis—too small to be recognizable—and made no artistic contribution to the appeal of “Vogue.”
Two of the judges on the appeals court panel agreed with this interpretation of Section 114(b) of the Copyright Act of 1976, 17 U.S.C. §114(b).
But the third judge—Judge Barry G. Silverman—wanted to go down the road chosen by the U.S. Court of Appeals for the Sixth Circuit in Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 74 U.S.P.Q.2d 1865 (6th Cir. 2005) (178 PTD, 9/15/04).
Silverman's dissenting opinion said that the Copyright Act gives the copyright owner of a sound recording the sole right to sample from the recording, and that applies to any portion of it, even a small one.
“It is no defense to theft that the thief made off with only a ‘de minimis' part of the victim's property,” the dissent said.
Judge Susan P. Graber authored the court's opinion. Judge David A. Ezra joined.
The Law Offices of Robert S. Besser represented VMG Salsoul. Proskauer Rose LLP and King & Ballow represented Madonna.
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