Recently, Madonna prevailed in a copyright infringement lawsuit brought against her. The Plaintiff in the lawsuit alleged that Madonna’s use of a twenty-three second modified “horn hit” in her song “Vogue” constituted copyright infringement. The Plaintiff claimed that Madonna unlawfully sampled the modified “horn hit” from Plaintiff’s disco song “Love Break” and thus, infringed upon the Plaintiff’s copyrights to “Love Break.” The Ninth Circuit Court of Appeals affirmed the district court’s grant of summary judgment in favor of Madonna. The Ninth Circuit expressly held that any copying which occurred was “de minimis” and that the general public would not recognize the brief sampling in “Vogue” as originating from “Love Break.” As a result, the Ninth Circuit found that there was no copyright infringement of the Plaintiff’s rights to the composition and sound recording of “Love Break.”
The Ninth Circuit defined sampling as “the actual physical copying of sounds from an existing recording for use in a new recording, even if accomplished with slight modifications such as changes to pitch or tempo.” The Ninth Circuit found that the Plaintiff demonstrated actual copying by Madonna. The Ninth Circuit then had to analyze whether the copying was “de minimis” and found that a “de minimis” exception does indeed apply to claims of infringement of a copyrighted composition and a copyrighted sound recording, noting that there had been some dispute as to whether this exception applied to sound recordings.
Specifically, this ruling by the Ninth Circuit is significant because it expressly rejected the position taken by the Sixth Circuit Court of Appeals in Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005). In Bridgeport, the Sixth Circuit Court of Appeals adopted a bright-line rule: “For copyrighted sound recordings, any unauthorized copying – no matter how trivial – constitutes infringement.” The Sixth Circuit famously coined the phrase “Get a license or do not sample.” However, the Ninth Circuit rejected Plaintiff’s reliance on Bridgeport and analyzed the text of the Copyright Act to find that nothing in the text suggests that Congress intended to eliminate the “de minimis” exception for sound recordings. The Ninth Circuit expressly acknowledged that its ruling has the effect of creating a split in the law of the Circuit Courts of Appeal. The Dissent criticized the majority’s rejection of the Bridgeport bright line rule, noting that Congress itself refused to take up the Sixth Circuit’s invitation to change the law if its’ holding was incorrect. As a result, the issue of the “de minimis” exception as applied to copyrighted sound recordings is ripe for determination by the United States Supreme Court.
The Ninth Circuit’s ruling creates uncertainty in the application of the law. Several different policy considerations come into play. Namely, those in favor of the Bridgeport bright line rule are likely to say that it is beneficial because the market will control the license prices and sampling is not accidental and easy to avoid. Those against it will likely argue that its requirement to impose licensing costs can stifle certain expansion in the music industry, especially for amateur or lesser known musicians. As of now, the Eleventh Circuit Court of Appeals, which governs the State of Florida, has not spoken on this issue. If the Plaintiff does decide to appeal this case to the Supreme Court, there may finally be a resolution as to this issue which could have an enormous impact on the music industry. Until then, there is uncertainty in the law which may create the potential for parties to forum shop between the Ninth Circuit and the Sixth Circuit, depending upon which law favors their position. Please contact our office if you have any questions regarding the information in this article.
Daniel Devine, Esq.
Santucci Priore, P.L.
 See, VMG Salsoul, LLC v. Madonna Ciccone, et. al., Case No. 13-57104, at Docket Entry No. 49-1 (9th Cir. June 2, 2016).