Vmg Salsoul, LLC v. Madonna Ciccone
824 F.3d 871
9th Cir.2016Background
- VMG Salsoul owns copyrights in the composition and sound recording of the 1980s song "Love Break" and sued Madonna, Shep Pettibone, and others alleging that Pettibone sampled brief "horn hit" snippets in Madonna's 1990 song "Vogue."
- Plaintiff narrowed its claim to a 0.23-second single horn hit (and a derived double hit) allegedly copied from Love Break into two commercial versions of Vogue.
- At summary judgment the district court found (1) the horn material lacked originality or, alternatively, (2) any copying was de minimis; it entered judgment for defendants and awarded attorney’s fees under 17 U.S.C. § 505.
- On appeal the Ninth Circuit assumed for summary-judgment purposes that actual copying occurred based on direct evidence (witness Shimkin) and expert reports, then addressed whether the copying was de minimis and whether the de minimis rule applies to sound recordings.
- The Ninth Circuit held that (1) an average audience would not recognize the brief horn snippets as taken from Love Break (composition and sound recording claims were de minimis) and (2) the de minimis doctrine does apply to sound-recording infringement (rejecting the Sixth Circuit’s Bridgeport bright-line rule).
- The court affirmed summary judgment for defendants but vacated the fee award because litigating under Bridgeport was objectively reasonable and factual disputes made the claim not frivolous; remanded for reconsideration of fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether alleged copying of horn hits is more than de minimis for composition | The copied horn hits (single and double) are original elements of the composition and recognizable to the public | The snippets are extremely short, occur few times, and are masked by other instrumentation—an average listener would not recognize appropriation | De minimis: copying is trivial; average audience would not recognize appropriation (summary judgment affirmed) |
| Whether alleged copying of sound recording is more than de minimis | The actual sound recording was sampled (physical copying), even if modified, and thus infringes the recording copyright | The sampled fragment was truncated, transposed, processed, and mixed among other sounds; an average listener would not perceive copying | De minimis: copying of the sound recording was trivial and not recognizable to the average listener (summary judgment affirmed) |
| Whether the de minimis doctrine applies to copyrighted sound recordings | Congress eliminated de minimis for sound recordings (Bridgeport): any sampling is actionable | Section 114(b) limits rights (permits independent imitation) and statutory text/history support maintaining the de minimis rule | De minimis applies to sound-recording claims; Bridgeport is rejected by Ninth Circuit (circuit split created) |
| Whether plaintiff’s pursuit of the claim warranted fee award to defendants under § 505 | Plaintiff relied on Bridgeport precedent; claim was not objectively unreasonable given circuit split and disputed facts | Claim was objectively unreasonable and frivolous; fees appropriate | Fee award vacated: bringing a claim based on existing circuit precedent is objectively reasonable; remand for fee reconsideration |
Key Cases Cited
- Newton v. Diamond, 388 F.3d 1189 (9th Cir.) (establishes de minimis test in music-sampling cases and distinguishes composition vs. sound-recording protections)
- Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir.) (adopts bright-line rule that any sampling of sound recordings is infringement; rejected by Ninth Circuit)
- Fogerty v. Fantasy, Inc., 510 U.S. 517 (Sup. Ct.) (fee awards under Copyright Act are discretionary; sets considerations for awarding fees)
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (Sup. Ct.) (copyright protects expressive content, not merely labor expended)
- Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157 (9th Cir.) (early articulation that illicit copying inquiry rests on ordinary lay hearer response)
- Seven Arts Filmed Entertainment Ltd. v. Content Media Corp., 733 F.3d 1251 (9th Cir.) (discusses consequences of creating circuit splits in copyright law)