Madonna Wins Vogue Sampling Lawsuit

Madonna has finally won her very long battle with Salsoul Records. For now. Variety reports:

On Thursday, the 9th Circuit Court of Appeals made it easier for musicians to sample small portions of song recordings by giving Madonna and her producer Robert “Shep” Pettibone a victory in a long-running lawsuit over the 1990 hit “Vogue.” The decision affirms a 2013 ruling by a California federal court that held on summary judgment that a 0.23 second sampling of a horn hit from the 1976 song called “Love Break” was de minimis, meaning small enough to be trivial.

“After listening to the audio recordings submitted by the parties, we conclude that a reasonable juror could not conclude that an average audience would recognize the appropriation of the horn hit,” writes 9th Circuit judge Susan Graber in Thursday’s opinion. “That common-sense conclusion is borne out by dry analysis. The horn hit is very short — less than a second. The horn hit occurs only a few times in ‘Vogue.’ Without careful attention, the horn hits are easy to miss. Moreover, the horn hits in ‘Vogue’ do not sound identical to the horn hits from ‘Love Break’ … Even if one grants the dubious proposition that a listener recognized some similarities between the horn hits in the two songs, it is hard to imagine that he or she would conclude that sampling had occurred.”

The latest decision is notable because it now puts the 9th Circuit (California, Arizona, Washington) in direct conflict with the 6th Circuit (Kentucky, Michigan, Ohio, Tennessee) on the issue of whether it’s legally permissible to take even the smallest amount without permission. In a 2006 case involving a N.W.A. rap song that sampled a Funkadelic riff (Bridgeport Music v. Dimension Films), a 6th Circuit judge wrote, “Get a license or do not sample. We do not see this as stifling creativity in any significant way.” VMG Salsoul, the copyright owner of “Love Break,” argued on appeal that the 9th Circuit should follow the Bridgeport decision by holding that the de minimis exception does not apply to infringements of copyrighted sound recordings.

With the above-noted conflict between the two federal appeals courts, Salsoul has grounds to petition SCOTUS. It’s worth noting that Shep Pettibone worked on both records. These days he owns the Empress, a popular gay nightclub/hotel complex in Asbury Park, New Jersey.