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Strike a Pose: Madonna's 'Vogue' Gets Fair Use Victory in 9th Cir.

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By Jonathan R. Tung, Esq. on June 03, 2016 3:56 PM

Have you ever listened to a song and heard the faint and often vague whisper of a familiar sound from another artist's song? Well, that's not by accident. Such sampling is rather common and is at the epicenter of a recent Ninth Circuit ruling in favor of everyone's favorite material girl, Madonna.

The court ruled that Madonna's very minor sample from a 1976 song in "Vogue" was small enough to be excusable. But, the issue actually might be a little more nuanced than that.

0.23 Seconds = 'De Minimis' and Trivial

The Ninth Circuit affirmed a lower federal district court's finding that the sampling in Madonna's 90's hit "Vogue," which featured a 0.23 second (yes, less than a quarter of a second) of horn sample from the 70's song "Love Break," was so small and trivial as not to constitute a copyright violation under fair use theory.

"After listening to the audio recordings submitted by the parties, we conclude that a reasonable juror could not conclude that an average audience would recognize the appropriation of the horn hit," the court wrote.

And that's a reasonable conclusion for the court to make. A quarter second sound sample could be difficult even to identify, let alone connect to its source.

Circuit Split

Although it looks like that's the point: reasonable minds can disagree. The Ninth Circuit's ruling on this issue directly contravenes the opinion of Sixth Circuit in its 2006 case Bridgeport Music v. Dimension Films. "Get a license or do not sample," the judge wrote in that case.

The Sixth Circuit got some agreement with the Ninth Circuit's dissenting judge, Barry Silverman. He was not convinced that the de minimis defense should apply in this case -- or, indeed, in any case where a sound sample is used by a third party without the permission and license of a copyright holder. Rather than paraphrase his opinion, it should be read in its unvarnished glory. Here's what he had to say:

True, "Get a license or do not sample" doesn't carry the same divine force as "Thou Shalt Not Steal," but it's the same basic idea. I would hold that the de minimis exception does not apply to the sampling, copying, stealing, pirating, misappropriation -- call it what you will -- of copyrighted fixed sound recordings. Once the sound is fixed, it is tangible property belonging to the copyright holder, and no one else has the right to take even a little of it without permission.

In this age of easy copying, we're sure that this will only become more of a 'thing' as time progresses.

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