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What Does Madonna's Court Victory Mean For Sampling?

After a recent court victory, Madonna is likely to be thanking her lucky stars.  On June 2nd, the U.S. Ninth Circuit Court of Appeals ruled 2-1 in favor of the dance-pop diva and producer Shep Pettibone, who had been sued by VMG Salsoul LLC over her alleged use of a .23-second snippet of the Salsoul Orchestra song Love Break in her 1990 hit Vogue. The court ruled that the use (purported to be a single horn stab) was de minimis, meaning such a small use as to be trivial and not a copyright infringement.

The Ninth Circuit ruling is at odds with a 2005 ruling from the Sixth Circuit, Bridgeport Music Inc.. v. Dimension Films. In that case, the court looked at whether N.W.A., in two of their songs, infringed the copyright of a Funkadelic song by sampling a two-second guitar riff. In that case, the Appeals Court, reversing the lower court, ruled that de minimis did not apply in cases of sampling of a sound recording (while leaving the door open to the possibility of fair use claims.)

This split between the two circuits could even ultimately set the issue on the path to the Supreme Court, though it could be a long time before such a hearing takes place.  Still, the case once again raises the issue of whether very short samples are not only not copyright infringements, but are too trivial to weigh.  

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Submitted by jonathan on July 19, 2016 - 11:57pm
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