On June 2, a divided panel of the Ninth Circuit affirmed the district court’s granting of summary judgment to defendants and vacated an award of attorney’s fees in the case of VMG SalSoul, LLC v. Ciccone. Plaintiff alleged that Madonna’s mega-hit, Vogue, infringed both the copyright in the composition and the copyright in the sound recording of the song, Love Break, recorded several years earlier by defendant, Shep Pettibone, who also worked on the recording of Vogue. Pettibone sampled, altered and incorporated the “horn hit” from Love Break into Vogue.

The “horn hit” consists of two forms, a single and a double hit, and occurs 27 and 23 times, respectively during the course of the 1982 recording of Love Break that is 7:26 in duration. By contrast, the “horn hit” sampled in Madonna’s 1990 recording of Vogue, is sampled solely from the single hit and is pitched a half tone higher than the original “horn hit” in Love Break. There are two versions of Vogue in issue: the “radio edit” that’s 4:53 in duration and contains one “single hit” and three “double hits” and the “compilation version” that’s 5:17 in duration and contains one “single hit” and five “double hits.” The single “horn hit” lasts less than a quarter of a second and the double “horn hit” also clocks in at less than a second in duration. The Court’s opinion includes the musical notation for both versions of the “horn hit” as heard in Love Break and in Vogue.  You can listen to the respective recordings here and here.

The Ninth Circuit had previously established the de minimus exception to copyright infringement for musical works in the 2003 case, Newton v. Diamondwhere the court noted that the unauthorized use “must be significant enough to constitute infringement,” and that a plaintiff “must show that the copying was greater than de minimus.”Quoting Newton, the Court stated that a “use is de minimus only if the average audience would not recognize the appropriation.” After analysis, including listening to both recordings, the court held that the appropriation of both the underlying musical work and the master recording of the two versions of the “horn hit” was de minimus.

Addressing the alleged copyright infringement in the sound recording, the Court stated:

After listening to the audio recordings submitted by the parties, we conclude that a reasonable juor could not conclude that an average audience would recognize the appropriation of the horn hit. That common-sense conclusion is borne out by dry analysis. The horn hit is very short – less than a second. The horn hit occurs only a few times in Vogue. Moreover, the horn hits in Vogue do not sound identical to the horn hits from Love Break. As noted above, assuming that the sampling occurred, Pettibone truncated the horn hit, transposed it to a different key, and added other sounds and effects to the horn hit itself. The horn hit then was added to Vogue along with many other instrument tracks.  Even if one grants the dubious proposition that a listener recognized some similarities between the horn hits in the two songs, it is hard to imagine that he or she would conclude that sampling had occurred.

In applying the de minmus exception to sampling of sound recordings, the Ninth Circuit explicitly broke with the Sixth Circuit, the only other circuit to directly address the issue. In the 2005 caseBridgeport Music v. Dimension Filmsthe Sixth Circuit adopted a bright-line rule, summarized by the Ninth Circuit as follows: “For copyrighted sound recordings, any unauthorized copying – no matter how trivial – constitutes infringement.”

Plaintiff, however, argued that there was a statutory basis for treating sound recordings differently from other copyrighted works and that the de minimus exception should not apply. The Court looked at Section 102, the list of copyrightable types of works, and found no basis to treat sound recordings differently from other copyrightable works, such as literary works. Similarly, in addressing the “bundle of rights” of Section 106, the Court concluded:

Again, nothing in that provision suggests differential treatment of de minimus copying of sound recordings compared to, say, sculptures. Although subsection (6) deals exclusively with sound recordings, that subsection concerns performances; nothing in its text bears on de minimus copying.

Plaintiff’s main statutory argument apparently was premised on the third sentence of Section 114(b), which reads as follows:

The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording. As the Court pointed out, this section is a limitation on a copyright owner’s rights and states that “sound alike” recordings that do not incorporate a separate master recording (i.e., no sampling) are permissible.

Addressing this provision dealing with sound-alike recordings, the Court stated:

But the quoted passage does not speak to the question that we face: whether Congress intended to eliminate the longstanding de minimus exception for sound recordings in all circumstances even where, as here, the new sound recording as a whole sounds nothing like the original.

The Sixth Circuit’s Bridgeport decision was premised on an interpretation of Section 114(b) that the Ninth Circuit explicitly rejected, knowing that doing so would create a split in the circuits and uncertainty in this area of the law. The Court noted that as a practical matter, the circuit split already exists as district courts outside the Sixth Circuit have almost uniformly declined to follow Bridgeport Music’s bright line rule.  However, the Court did reverse the award of attorney’s fees:  “It plainly is reasonable to bring a claim founded on the only circuit-court precedent to have considered the legal issue, whether or not our circuit ultimately agrees with that precedent.

In dissent, Judge Silverman defended the Bridgeport precedent:

I find Bridgeport’s arguments well-reasoned and persuasive. Equally compelling is, I think, Congress’s Silence in the wake ofBridgeport, especially in light of the fact that the Sixth Circuit explicity invited Congress to clarify or change the law if Bridgeport’sbright-line rule was not what Congress intended. While it’s true that congressional inaction in the face of judicial interpretation is not ironclad evidence of Congressional approval, it’s not chopped liver, either. In this case, Bridgeport has not been hiding out in the woods, waiting to be found; it has been governing the music industry in Nashville and elsewhere for eleven years.

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My own view is that the Ninth Circuit got it right here. There is no reason to treat sound recordings differently from other types of copyrighted works and the de minimusexception should apply where appropriate. Sampling is merely a form of aural collage art and there is no doubt that a court would find the incorporation of small snippets a copyrighted work of visual art such as a painting or photograph in another painting, photograph or sculpture either to constitute fair use or a non-actionable de minimusappropriation. In sum, Madonna has made de minimus usage as in vogue in copyright as she has long done with her clothing.