Vogue's Love Break Horn Hits De Minimis

The U.S. Circuit Court of Appeals for the 9th Circuit recently ruled in favor of Madonna and Producer Shep Pettibone in a copyright lawsuit over use of a 0.23-second sample in one of Madonna’s biggest commercial hits, Vogue.  The plaintiffs, VMG Salsoul LLC, alleged that defendants sampled sounds from the early 1980s song, Love Break, which Mr. Pettibone also produced, and that a modified version of the samples were then used in Vogue.

There are two commercial versions of Vogue, the radio edit and the compilation version.  The musical segment in question is a horn stab (“Horn Hit”), or chord, that is heard at 5-6 different points in the radio edit (at 0:56, 1:02, 3:41, 4:05, and 4:18) and compilation version, but because these Horn Hits vary between single and double hits, the sample itself is actually heard 9-11 times depending on the song version.  The district court found that “neither the chord or the Horn Hit sound were sufficiently original to merit copyright protection” and that, if it was subject to copyright protection, any copying was de minimis.

In its ruling, the Court agreed with the district court’s holding “that any copying that occurred was de minimis and not an infringement of either the composition or the sound recording” because a listener “would not recognize the brief snippet in Vogue as originating from Love Break”.  Even if the plaintiff could have established that copying did occur, “the claim failed because the copying was trivial”.

The Court analyzed the key of the horn hit, its placement in the music, and the extent to which the sound was manipulated.  In Vogue, the horn hit was copied from Love Break, but it was also transposed, filtered, truncated, and other effects were added to the sound.  The Court further examined the number of times the sound appeared in Vogue in comparison with Love Break, and the context of the instrumental music surrounding the horn hits.  In other words, the de minimis analysis was not solely contingent upon the 0.23 duration of the sample, but also considered the extent to which the sound was altered, or manipulated, and the context of the passage where the horn hit appeared.

Under U.S. copyright law, in order for the copying of a copyrighted work to be actionable, the copyrighted work and the allegedly infringing work must be substantially similar.  In the case of Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir.2005), the Sixth Circuit determined it was not necessary for the court to determine if a sample was substantially similar to the original recording, and found that “any sampling of a sound recording, however small, constitutes copyright infringement“.

The Vogue decision therefore places the 9th circuit (California, Arizona, Washington) in direct conflict with the 6th circuit (Kentucky, Michigan, Ohio, Tennessee) on the issue of digital sampling and whether even the smallest sample constitutes copyright infringement – which raises the possibility of a review by SCOTUS.  Until then, you can pick your jurisdiction of choice depending on what suits your needs.