The music industry in the past few years has been thriving, as original works and covers from various artists can be easily accessed by nearly anyone who has an internet connection. Youtube, itunes, spotify, among others, all grant access to a plethora of songs and music videos.
Even before all this, in 1990 Madonna Louise Ciccone or simply “Madonna” released her hit song “Vogue” to critical acclaim. In fact, “Vogue” was second on the list of Madonna’s 15 best songs according to Billboard. No small feat, since Madonna’s entire singing career which started in 1982, spans more than three decades.
On July 18, 2011 and February 2012 VMG Salsoul, LLC who holds a copyright for the song “Love Break” filed two infringement actions with the Central District Court of California against the producer of Vogue, Shep Pettibone, Madonna, Warner Music Group, Warner Brothers Records Inc. WB Music Corporation, Blue Disque Music Company, WEBO Girl Publishing Inc., and Lexor Music Inc. One was for infringement of the copyright to the composition of Love Break, and the other was for infringement of the copyright to the sound recording of Love Break. It claimed that Pettibone copied a 0.23-second segment of horns from an earlier song, known as Love Break, and used a modified version of that snippet when recording Vogue.
The plaintiff submitted as actual evidence of copying the fact that Pettibone asked an engineer to introduce sounds from “Love Break” into the recording of “Vogue.”
The Central District Court of California ruled that Plaintiff was unable to show that the copying was greater than de minimis, as an average audience would not recognize the appropriation of the composition. Unsatisfied with the ruling of the Central District Court finding no copyright infringement because any copying by Pettibone of Love Break was “de minimis”, VMG Salsoul appealed this decision to the United States Court of Appeals, for the Ninth Circuit
On June 2, 2016, the appeals court dismissed VMG Salsoul’s appeal.
It confirmed that the copied elements from the Love Break composition are very short. The single horn hit lasts less than a quarter-second, and the double horn hit lasts—even counting the rests at the beginning of the measure—less than a second and explained that the horn hit itself was not copied precisely. According to Plaintiff’s expert, the chord “was modified by transposing it upward, cleaning up the attack slightly in order to make it punchier [by truncating the horn hit] and overlaying it with other sounds and effects. One such effect mimicked the reverse cymbal crash. . . . The reverb/delay ‘tail’ . . . was prolonged and heightened.” Moreover, as with the composition, the horn hits are not isolated sounds. Many other instruments are playing at the same time in both Love Break and Vogue.
In sum, viewing the evidence in the light most favorable to Plaintiff, Pettibone copied one quarter-note of a four-note chord, lasting 0.23 seconds; he isolated the horns by filtering out the other instruments playing at the same time; he transposed it to a different key; he truncated it; and he added effects and other sounds to the chord itself. For the double horn hit, he used the same process, except that he duplicated the single horn hit and shortened one of the duplicates to create the eighth-note chord from the quarter-note chord. Finally, he overlaid the resulting horn hits with sounds from many other instruments to create the song Vogue.
Thus, the appeals court upheld the ruling of the District Court that any copying that occurred was “de minimis” and not an infringement of either the composition or the sound recording of “Love Break.”
The appeals court cited Newton v. Diamond:
For an unauthorized use of a copyrighted work to be actionable, the use must be significant enough to constitute infringement. See Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 74–75 (2d Cir. 1997).
x x x
The principle that trivial copying does not constitute actionable infringement has long been a part of copyright law. Indeed, as [a judge] observed over 80 years ago: “Even where there is some copying, that fact is not conclusive of infringement. Some copying is permitted. In addition to copying, it must be shown that this has been done to an unfair extent.” West Publ’g Co. v. Edward Thompson Co., 169 F. 833, 861 (E.D.N.Y. 1909). This principle reflects the legal maxim, de minimis non curatlex (often rendered as, “the law does not concern itself with trifles”). See Ringgold, 126 F.3d at 74–75. VMG SALSOUL V. CICCONE 11 Newton, 388 F.3d at 1192–93.
This is a key victory for Madonna in her long and successful career.
 349 F.3d 591 (9th Cir. 2003)
Contact: Atty. Ignacio A. Sapalo, Senior Associate, e-mail: firstname.lastname@example.org, Tel. No.: (632) 891-1316; Fax No.: 891-1198