Jun 7, 2016

Sampling Set to Come into 'Vogue' Following Success for Madonna in Copyright Claim

In the US, Madonna has successfully defended a claim of copyright infringement relating to the song Vogue.

The claimant, VMG Salsoul LLC, alleged that a fraction of a second (0.23 of a second to be exact) of a horn arrangement from an earlier song had been copied and used in the 1990 composition.


Those in favour

The presiding judge, Susan P Graber, commented that, "After listening to the recordings we conclude that a reasonable jury could not conclude that an average audience would recognise the appropriation of the composition."

The three judges hearing the case ruled 2-1 in favour of Madonna, Pettibone and other defendants including Warner Bros Records.

A Dissenting Voice

The dissenting judge, Mr Silverman, said even a small sample of music used without a licence should be a breach of copyright.  He noted that, "It is no defence to theft that the thief made off with only a 'de minimis' part of the victim's property."


While the decision changes little for Madonna, the ruling could however help future artists using samples.

It can be assumed that the ruling will lead to short samples becoming more commonplace in music as artists, producers and the like will feel there will be less risk associated with such practices.

Decision at Odds at a Federal Level

The 9th circuit decision, which covers California, is at odds with another federal appeals court.

In a 2005 ruling known as the 'Bridgeport' case, the 6th circuit, which includes the music hub of Nashville, ruled against gangster rappers N.W.A. whose "100 Miles and Runnin" sampled a brief guitar riff from funk greats Funkadelic.  This decision, which said that even small samples warranted copyright protection, led to a surge in lawsuits of artists seeking compensation.

This might explain why a lawsuit was recently filed against Justin Beiber and Skirllex over his hit song "Sorry" in Nashville. Even if there was no sampling in that particular song, the federal jurisdiction is clearly 'claimant friendly' in song-theft cases thanks, in part, to the above Bridgeport case.

The dissenting Judge, Mr Silverman, said the latest decision would cause confusion at a national level more than a decade after the Bridgeport ruling, adding that Congress was the more appropriate venue to change rules.

VMG Salsoul LLC, have not made any comment on the outcome and it is not known if they plan to take any further action.

Comparison with the EU/Germany

We reported only yesterday on Kraftwerk's failure to bring a claim for copyright infringement against a producer who had used a short sample of their music in Sabrina Setlur's 1997 track, "Nur Mir" ("Only Me").  In this case the producer had used a 2 second sample of music.  The case had bounced around the German court system for approximately 19 years with varying degrees of success for both sides, however, the German Federal Constitutional Court held that producers should be able to create work without financial risks or restrictions and sided with the producer.

Consequently, sampling is allowed, provided that the new work does not directly compete with the sampled work and does not financially harm the rights holders. The court said that where there is "negligible" impact on the usage rights of the intellectual property owner, "then artistic freedom overrides the interest of the owner of the copyright."

For further details see our news post entitled, "Kraft-y-werk by Producer Avoids Copyright Infringement Claim" here.

in: Case Law, Copyright, EU/International, News

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