MANHATTAN (CN) — A producer of Madonna’s 1990 hit “Vogue” sued Warner Bros. this week, claiming it owes him royalties on his “50 percent interest in the song” he says he co-wrote with Madonna.
Robert E. “Shep” Pettibone dba Lexor Music sued EB Music Corp. and Warner/Chappell Music on April 10 in Federal Court seeking at least $500,000 in royalties, an accounting and court costs. Madonna is not a party to the complaint.
“Vogue” was the subject of a 2012 copyright lawsuit in the Central District of California, in which the 1970s salsa/disco label VMG Salsoul sued Madonna and Pettibone over “numerous but intentionally hidden” samples of its copyrighted 1970s song “Ooh I Love It (Love Break)” on “Vogue.”
Pettibone, a disco producer and remixer, recorded “Love Break” for Salsoul, along with dozens of other dance records for the label.
A divided Ninth Circuit ruled in June 2016that a 0.23-second segment of horns from “Love Break” sampled on “Vogue” did not infringe on Salsoul’s copyright.
A federal judge had found 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. The judge awarded Madonna and Pettibone a total of $670,117 in attorneys’ fees and $50,055 in costs.
The Ninth Circuit affirmed the judgment, but vacated the award of attorneys’ fees and remanded for reconsideration.
Pettibone’s Monday lawsuit accuses Warner Bros. of withholding and failing to pay him royalties owed for his defense of the VMG Salsoul lawsuit, despite his “demand that they pay these royalties to him, and despite giving them notice of breach.”
He seeks declaratory judgment that the defendants are solely responsible for costs, expenses and attorneys’ fees for any claim, action or lawsuit, including the VMG Salsoul lawsuit.
Warner Bros. claims it’s entitled to withhold, deduct and retain royalties as part of the indemnification clause of a 1990 exclusive administration agreement, according to Pettibone’s lawsuit. But the producer says there has been no breach of the agreement that would trigger the indemnification provision.
The case has been assigned to U.S. District Judge Richard Sullivan.
Pettibone remixed other Madonna songs, including “Into the Groove” and “Causing a Commotion,” as well as producing the popular singles “Like a Prayer” and “Express Yourself.” He owns the Paradise Nightclub and the Empress Hotel, a popular gay destination and resort in Asbury Park, New Jersey.
WB Music did not immediately respond to requests for comment.
Pettibone is represented by Kenneth Gordon with Gordon Gordon and Schnapp.