Remember “Vogue,” Madonna’s hit song from 1990 that introduced the world to a hand-swirling, hip-gyrating dance craze?
The courts haven’t.
Shortly after the song was released, a lawsuit was filed by VMG Salsoul, LLC, a firm that holds the copyrights to the song “Love Break,” which the firm alleges Madonna illegally sampled in the hit. The sample in question lasts 0.23 seconds, but the company claimed Madonna’s producer, Shep Pettibone, who had worked on “Love Break” years before, used the snippet without permission.
But this week, the US Court of Appeals for the 9th Circuit, in California, ruled that the horn segment was too brief to be recognizable to a general audience and therefore cannot be considered a copyright violation, The LA Times writes.
“The horn hit occurs only a few times in ‘Vogue,’” notes Judge Susan P. Graber for the 2-1 majority opinion. “Without careful attention, the horn hits are easy to miss.”
The dissenting opinion, from Judge Barry G. Silverman, argues instead that despite the incredibly brief horn blast, the unapproved sampling still amounts to theft.
“It is no defense to theft that the thief made off with only a ‘de minimis’ part of the victim’s property,” he says. Further, Silverman says he favors a rule out of Nashville and enshrined by a different appeals court, “requires artists to obtain a license to use an identical copy of a copyrighted sound recording,” the Times reports.
The Hollywood Reporter points out that this decision is worth noting because it puts the 9th Circuit in conflict with the 6th Circuit, which includes Kentucky, Michigan, Ohio and Tennessee. The 6th Circuit ruled in 2006, in a case involving an NWA song that sampled a riff from a Funkadelic song, that anyone who samples a song should require the rights before using it.
Further, the “Vogue” case could eventually work its way up to the currently short-staffed Supreme Court which, given the absence of a ninth member, “may be on the lookout for disputes of the less politically charged variety,” THR says.