In a copyright decision that rocks the music industry and splits from the Sixth Circuit, the Ninth Circuit recently held that Madonna’s mega-hit “Vogue” did not violate copyright rights by sampling a 0.23-second horns segment of the 1980’s song “Love Break.” In VMG Salsoul v. Ciccone, the divided appellate court affirmed the Central District of California’s ruling that “de minimis” copying does not constitute copyright infringement, even if the plaintiff proves actual copying.

Applying this standard, and after listening to the audio recordings, the majority agreed with the district court that Vogue did not infringe Love Break because an average audience would not “recognize the appropriation of the horn hit” in Madonna’s 1990’s dance song. The majority further reasoned that “[i]f the public does not recognize the appropriation, then the copier has not benefitted from the original artist’s expressive content” and, therefore, there is no infringement.

The dissent rejected the majority’s application of the “de minimis exception,” and opined that “the pertinent inquiry in a sampling case” should not be “whether a defendant samples a little or a lot, but whether a defendant sampled at all.” The dissent explained that “[i]n any other context, this would be called theft” and that it should be of “no defense to theft that the thief made off with only a ‘de minimis’ part of the victim’s property.”

That said, query whether the answer lies in between: sometimes a de minimis sample is infringing and sometimes it is not. The answer should depend on whether an average audience would recognize the appropriation. Should the Ninth Circuit have affirmed on that basis?

The Ninth Circuit’s decision is significant because of the split it creates with the Sixth Circuit’s bright-line rule in Bridgeport Music, Inc. v. Dimension Films: “For copyrighted sound recordings, any unauthorized copying—no matter how trivial—constitutes infringement.” Now, with the Ninth Circuit’s ruling, there are “inconsistent rules among the circuits [that] lead[s] to different levels of protection in different areas of the country, even if the same alleged infringement is occurring nationwide.” As a result, this likely is an issue to be taken up by the U.S. Supreme Court. Until then, the Ninth Circuit has made it easier – or at least less risky – for artists and their producers to sample small portions of other musicians’ sound recordings.