Madonna and one of her producers have won a copyright lawsuit in an appeals court over an alleged small horn sample in her song 'Vogue.' Jun Sato/Getty
Madonna has won the appeal of a copyright infringement lawsuit over a tiny section in her song “Vogue.” The suit alleged that one of the song’s producers, Shep Pettibone, used a small segment of horns from another song he recorded.
As Reuters reports, the 9th U.S. Circuit Court of Appeals in Pasadena, CA, ruled in a 2-1 vote on Thursday that the 0.23-second horns snippet wouldn’t be recognizable to the general public as hailing from the song “Love Break.” Pettibone worked on “Love Break” as well as “Vogue.”
The plaintiff VMG Salsoul LLC, who holds the copyright for “Love Break,” claimed Pettibone sampled the “horn hit” from that song and used it in “Vogue.” Defendants included Madonna, Pettibone and Warner Bros.
Circuit Judge Susan Graber wrote for the majority, citing that the defendants at most copied “a quarter-note single horn hit,” and added that “A reasonable jury could not conclude that an average audience would recognize an appropriation of the ‘Love Break’ composition.”
The dissenting judge, Barry Silverman, said, “In any other context, this would be called theft.”
Robert Besser, a lawyer for VMB Salsoul LLC told Reuters, “I agree with the dissent because it should be an infringement for copying any piece of any sound recording.”
A representative for Pettibone was not immediately available for comment.
This recent ruling could make sampling short portions of songs more feasible for artists without the risk of legal repercussions. As The Hollywood Reporter points out, the 9th Circuit’s decision directly contradicts a 2006 case presented in the 6th Circuit (Kentucky, Michigan, Ohio, Tennessee), which involved an N.W.A song that sampled a riff from Funkadelic. At the time, a 6th Circuit judge wrote, “Get a license or do not sample. We do not see this as stifling creativity in any significant way.”
A decade after that 6th Circuit Court ruling, numerous artists have been sued for copyright infringement due to sampling and it may also have affected where those filings take place. Last month, a copyright infringement lawsuit against Justin Bieber and Skrillex was filed in Nashville, TN, concerning their song “Sorry.” Skrillex recently refuted the claim by demonstrating via video how he says he made the track without any use of the vocal sample in question.