The Material Girl, when using a .23-second horn blast in her mega-hit Vogue, didn’t infringe on a record company’s copyrights, the U.S. Ninth Circuit Court of Appeals has ruled.
But in holding for Madonna, aka Madonna Louise Ciccone, the appellate judges in California also locked horns with their federal brethren in Nashville over what’s legally acceptable and what’s not when it comes to “sampling,” the practice of musicians taking snippets of others’ work.
The dispute over de minimis v. “bright line” sampling–or not–may be left to the U.S. Supreme Court to resolve.
The case started when VMG Salsoul, a recording company, sued Madonna and others in July, 2013, asserting she and producer Robert “Shep” Pettibone violated copyrights by sampling a “horn blast” from the 1976 song Love Break.
The Material Girl’s use of the horn snippet (listen closely around :56 and 1:02 in the video above) was de minimis and did not infringe, U.S. Circuit Judge Susan P. Graber wrote in the recent Ninth Circuit ruling, which affirmed the 2013 decision by a federal court in California.
Graber said it was key to listen to the audio recording sampled, from which “ a reasonable juror could not conclude that an average audience would recognize the appropriation of the horn. …”
She said the plaintiff’s primary expert originally misidentified the source of the sampling, leading her to observe that: “a highly qualified and trained musician listened to the recordings with the express aim of discerning which parts of the song had been copied, and he could not do so accurately. An average audience would not do a better job.”
But U.S. Circuit Judge Barry Silverman dissented from the 2-1 appellate decision. He said VMG Sal Soul held copyrights that were violated because Madonna and the other defendants directly took (copied) a sound that was fixed in a tangible medium (a recording), and, “in any other context, this would be called theft. It is no defense to theft that the thief made off with only a ‘de minimis‘ part of the victim’s property.”
The appellate rift
This decision splits two appellate circuits: the Ninth, with jurisdiction over the West Coast and the music industry around Los Angeles; and the Sixth, with sway over Nashville and its music scene.
The Sixth Circuit had created a music industry controversy with its 2005 ruling in Bridgeport Music v. Dimension Films, declaring that “any amount of unauthorized sampling of a sound recording amounted to infringement.” The appellate judges in Tennessee created a “bright line” standard, saying “get a license or do not sample.”
That case seemed to fly in the face of the Ninth Circuit’s 2004 ruling in Newton v Diamond, in which the Western appellate judges wrote of an allowable de minimis use (sampling), with the test “whether a reasonable juror could conclude that the average audience would recognize the appropriation.”
Gerber wrote that the Ninth Circuit’s latest decision will have consequences “but the goal of avoiding a circuit split cannot override our independent duty to determine congressional intent.”
Legal analysts see the Supreme Court as the final arbiter of the appellate disagreement, though it is unclear if or when the justices might take up a pertinent case. Meantime, the legal wrangling over sampling has gone global, too.