9th Circ. Rules for Madonna in ‘Vogue’ Case

PASADENA, Calif. (CN) - Creating a split with the Sixth Circuit, a divided Ninth Circuit on Thursday ruled that a horn segment from the Madonna megahit "Vogue" did not infringe on a copyright for another song.

VMG Salsoul sued Madonna, producer Shep Pettibone and Warner Bros., claiming that the horn part in 1990's "Vogue" copied a 0.23-second segment of horns from the 1980s song "Love Break," which Pettibone also recorded.

A federal judge found for Madonna, holding that the disputed segment although demonstrated by VMG Salsoul to be "actual copying" was short enough to apply the "de minimis" exception to infringement claims.

With one judge dissenting, the majority of the Ninth Circuit's three-judge panel upheld the decision.

Writing for the majority, Judge Susan Graber said in the 38-page opinion that a reasonable jury could not conclude that an average audience would recognize the appropriation of the composition nor of the sound recording at issue.

"Without careful attention, the horn hits are easy to miss," Graber said.

The judge also found that the statutory text of federal copyright law, "confirmed by the legislative history, reveals that Congress intended to maintain the de minimis exception for sound recordings."

But Judge Barry Silverman wrote in a separate dissent that he would hold to the Sixth Circuit's 2005 decision in Bridgeport Music v. Dimension Films, in which the court held that the use of an identical copy of a portion of a copyrighted fixed sound recording is an infringement.

"In any other context, this would be called theft," Silverman said. "It is no defense to theft that the thief made off with only a 'de minimis' part of the victim's property."

Following Bridgeport, Silverman said that "the pertinent inquiry in a sampling case is not whether a defendant sampled a little or a lot, but whether a defendant sample at all."

"The majority now proposes to introduce a different rule for this circuit, creating a circuit split, and providing a lower level of protection for copyright holders in a different area of the country," he wrote.

Graber defended the circuit split in the majority opinion, writing that "the goal of avoiding a circuit split cannot override our independent duty to determine congressional intent."

"Otherwise, we would have no choice but to blindly follow the rule announced by whichever circuit court decided an issue first, even if we were convinced, as we are here, that our sister circuit erred," Graber wrote.

Neither VMG Salsoul's attorney Christopher Chapin nor Madonna's attorney Alexander Kaplan immediately responded to an email requesting comment on Thursday afternoon.

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