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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 today'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."
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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."
That decision a decade ago has been controversial in the legal and musical community and has opened up copyright infringement liability for sampling musicians. For example, it may explain why a lawsuit was recently filed against Justin Bieber and Skrillex over "Sorry" in Nashville, Tennessee of all places. Even if there was no sampling in "Sorry," that jurisdiction has become friendly for plaintiffs in song theft cases thanks in part to Bridgeport.
VMG Salsoul, the copyright owner of "Love Break," argued on appeal that the 9th Circuit should follow theBridgeport decision by holding that the de minimis exception does not apply to infringements of copyrighted sound recordings.
But Graber notes that with the exception of the Bridgeport case, there's been "consistent application of the de minimis exception across centuries of jurisprudence" and believes Congress intentionally put limitations on the rights of a sound recording copyright holder. Further, she notes that the de minimis rule applies to other artistic works.
"A computer program can, for instance, 'sample' a piece of one photograph and insert it into another photograph or work of art," states the opinion (read here in full). "We are aware of no copyright case carving out an exception to the de minimis requirement in that context, and we can think of no principled reason to differentiate one kind of 'physical taking' from another."
The "Vogue" case raises the possibility of review by a Supreme Court currently with eight justices who may be on the lookout for disputes of the less politically-charged variety. Here, the 9th Circuit directly acknowledges it is taking "the unusual step of creating a circuit split."
Madonna has affirmed her legal victory, although the 9th Circuit vacates the lower court's award of attorney fees because it deems the claim by VMG Salsoul not to be objectively unreasonable given what happened inBridgeport.
Today's decision also brought a dissenting opinion from 9th Circuit judge Barry Silverman, who wasn't persuaded that there should be a de minimis defense to what he perceives as outright thievery. He writes, "True, Get a license or do not sample doesn’t carry the same divine force as Thou Shalt Not Steal, but it’s the same basic idea. I would hold that the de minimis exception does not apply to the sampling, copying, stealing, pirating, misappropriation – call it what you will – of copyrighted fixed sound recordings. Once the sound is fixed, it is tangible property belonging to the copyright holder, and no one else has the right to take even a little of it without permission."
This article was first published by The Hollywood Reporter.
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