VMG Salsoul v. Ciccone

Lore & Background

The case arose when VMG Salsoul, LLC, copyright holder of 'Ooh I Love It (Love Break)', sued Madonna for sampling a single horn hit and a double horn hit in 'Vogue' without license. The federal court ruled for the defendants under the de minimis doctrine, finding only a minimal and insubstantial part of the original was copied. The Ninth Circuit affirmed, noting the sample lasted no more than 0.23 seconds and appeared intermittently, unlike the six-second loop in Newton v. Diamond which was also deemed insubstantial.

Reader's Guide

The Ninth Circuit's decision reinstated the de minimis defense for sound recordings, which had been effectively eliminated by the Sixth Circuit's Bridgeport Music ruling. The court rejected Bridgeport's interpretation of 17 U.S.C. § 114(b), arguing that provision limits copyright holder rights and does not eliminate the de minimis defense. The majority emphasized that substantiality of copying is key, and that an average audience would not recognize the appropriation. The dissenting opinion argued that Bridgeport's bright-line rule was efficient and that sampling constitutes physical taking. The ruling created a circuit split, leaving the music industry with conflicting legal standards on sampling.

Did You Know?

• The sampled horn hit in 'Vogue' lasted no more than 0.23 seconds and appeared only intermittently.
• The Ninth Circuit relied on its earlier decision in Newton v. Diamond, which held that a six-second sample looped over forty times was de minimis.
• The dissenting judge characterized sampling as 'physical taking rather than an intellectual one'.
• The court stated that congressional inaction after a single circuit court decision does not indicate legislative assent.