by Michelle Gilzenrat Davis, FMC Legal Intern 

Is one horn hit sufficiently original and non-trivial to be protected by copyright?  No it’s not, says The U.S. District Court of the Central District of California.

In a summary judgment decision filed on Monday, Nov. 18, Judge Beverly Reid O’Connell held that the horn sample allegedly used in Madonna’s double-platinum 1990 hit “Vogue” was not subject to copyright protection because it “lacks originality” and, even if it were copyrightable, the alleged copying is “de minimis.”

For those of you may not be fluent in Latin/legalese, “de minimis” means, literally, “about minimal things.” In sampling cases, it refers to the level below which courts deem the amount a musician takes from a copyrighted work too small to consider copyright infringement. A de minimis standard can be measured quantitatively or qualitatively, and the California court seems to use both in its reasoning. Judge O’Connell notes that the horn hit in Madonna’s song is short in length— just single chord that is repeated percussively. She also notes that the hit is not a component of the “hook” in the plaintiff’s song, “Love Break,” from which the sample was supposedly cribbed. In total, “no reasonable audience” would find the sampled portions significant “nor would they recognize the appropriation.”

This is a fascinating decision in the sampling world because some analysts had mourned the death of de minimis. In the landmark 2005 sampling case, Bridgeport Music, Inc. v. Dimension Films, the Sixth Circuit U.S. Court of Appeals abandoned de minimis completely, holding that “no de minimis inquiry should be undertaken at all when the defendant has not disputed that it digitally sampled a copyrighted sound recording.” In other words ,under Bridgeport, if you sample you must pay—no matter if you borrow a whole chorus or one chord.

Judge O’Connell dismisses the Bridgeport decision in her opinion, noting that the Ninth Circuit has not adopted the Bridgeport bright-line rule. Instead, she relies on the precedent set by Newton v. Diamond in which the Beastie Boys sampled three notes from a jazz musician named James Newton. The Newtown court embraced “de minimis,” holding that “for an unauthorized use of a copyrighted work to be actionable, the use must be significant enough to constitute infringement.”

So what does this mean about the future of sampling? Well, it depends where future suits are brought and how high up the chain this decision gets appealed. For now, there is still no de minimis in the Sixth Circuit while the standard continues to be adopted in Ninth Circuit.

It’s also worth noting that there were a number of other fishy circumstances surrounding this sampling case that would make it easy to distinguish from other samples. Although incidental to the court’s ruling, the timeline of events and the relationship between the plaintiff (VMG Salsoul) and defendants in this case is interesting. VMG’s CEO, Curt Frasca, was an assistant engineer on the “Vogue” recording. Apparently, in February 2011 he encouraged VMG’s private equity group to buy the copyrights to the Salsoul catalog from Bethlehem Music Co. Inc. because he believed “there was potential to make money by going after sample claims.” Frasca and Co. sent a Notice of Infringement to Madonna and producer Robert “Shep” Pettibone just five months after the acquisition. After Madonna played “Vogue” live at the Super Bowl in February 5, 2012, VMG filed its official complaint July 11, 2012 “alleging the deliberate and unauthorized use of its sound recording and composition copyrights” and “deliberately hiding” the sample.

On the flip side, Pettibone offered evidence that the horn hit wasn’t even a sample at all, but a sound he independently created using a “Proteus emulator.” On top of that, there was some evidence that Pettibone may even have ownership of the tune he allegedly sampled from, making the entire case invalid.

So, Madonna and Co. had a lot of strong arguments on their side—all points the court says “weigh[ed] in favor” of finding for the defendants. As we wrote in our comments to the US Patent & Trademark Office, “the ability for artists to build upon the artifacts of cultural expression is essential to a broader dialog that includes past works as well as contemporary artistic innovations. It is important not to lose sight of this as we look to establish a more functional commercial marketplace for the licensing of existing musical works in new creations.”  But for future would-be samplers, given the lack of legal clarity around these issues, your best bet may still be to secure the appropriate licenses before sampling. And if your sample is tiny or discreet…well, just hope you’re sued in California and not New York.

(photo by Lorraine Day, courtesy Sire Records)