Strike a (victory) pose. Madonna won an ongoing copyright infringement case brought against her over her 1990 song “Vogue” (one of her most enduring No. 1 hits) on Thursday, June 2 — and the court decision may set a precedent for future artists.
The 57-year-old pop icon was hit with the lawsuit back in 2012, by Delaware company VMG Salsoul LLC, who owns the copyright to the early ’80s song “Love Break.”
In the original filing, VMG alleged that Shep Pettibone, a producer of “Vogue” who also recorded “Love Break,” had sampled a “horn hit” from “Love Break” and used it for Madonna’s track.
On Thursday, the U.S. Court of Appeals for the Ninth Circuit in Pasadena, California, ruled that the 0.23-second snippet used in “Vogue” was de minimis, or small enough to be trivial.
“Defendants copied, at most, a quarter-note single horn hit and a full measure containing rests and a double horn hit,” Circuit Judge Susan Graber wrote of the court’s decision, according to Reuters. “A reasonable jury could not conclude that an average audience would recognize an appropriation of the ‘Love Break’ composition.”
The dissenting judge, Barry Silverman, argued that even the smallest sample of music used without license should be considered a copyright violation.
“In any other context, this would be called theft,” he wrote.
The Ninth Circuit (California, Arizona, Washington) decision comes in direct opposition to what the Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee) has determined about music sampling.
According to The Hollywood Reporter, a Sixth Circuit judge wrote in a 2006 case that artists need to “get a license or do not sample. We do not see this as stifling creativity in any significant way.”
The latest decision on Madonna’s “Vogue” case could open the doors for future artists to sample freely from previous songs without legal repercussions.
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