VMG Salsoul v. Ciccone — Copyright

The Ninth Circuit held that the de minimis exception applies to sound-recording copyrights, clearing Madonna's 'Vogue' of a sampling claim and openly splitting with the Sixth Circuit's Bridgeport rule.

It came down to less than a quarter of a second of horns. In VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir., decided June 2, 2016), the Ninth Circuit confronted a claim that Madonna’s 1990 hit “Vogue” had unlawfully sampled a fleeting horn hit from the Salsoul Orchestra’s “Ooh I Love It (Love Break).” Writing for the panel, Judge Susan P. Graber held that the borrowing — if it happened at all — was so trivial that no reasonable listener would recognize it, and therefore did not infringe. In reaching that result, the court did something rare and consequential: it expressly created a circuit split, refusing to follow the Sixth Circuit’s influential rule that any unauthorized sampling of a sound recording, however small, is infringement.

At a glance

Case: VMG Salsoul, LLC v. Ciccone, No. 13-57104, 824 F.3d 871 (9th Cir. June 2, 2016).
Court: U.S. Court of Appeals for the Ninth Circuit; opinion by Judge Susan P. Graber, with a dissent by Judge Barry G. Silverman.
Posture: Appeal from summary judgment for the defendants in the Central District of California; affirmed on liability, with the attorney’s-fees award to defendants vacated and remanded.
Holding: The de minimis exception applies to claims of infringement of a sound-recording copyright; copying that an average audience would not recognize as appropriated is not actionable.
Significance: Created an open circuit split with the Sixth Circuit’s Bridgeport Music, Inc. v. Dimension Films (2005) bright-line rule against any sampling.

The plaintiff, VMG Salsoul, held rights in “Love Break,” an early-1980s composition and recording. It alleged that Shep Pettibone — who had worked on “Love Break” and later produced “Vogue” — lifted a short horn segment from the earlier recording and dropped a modified version of it into “Vogue.” The asserted sample was no more than 0.23 seconds long, a single horn “hit” that, in altered form, recurred intermittently in the later song. VMG sued on both the composition copyright and the sound-recording copyright. The district court granted summary judgment to Madonna and Pettibone, finding any copying de minimis, and the Ninth Circuit took up the appeal.

The de minimis principle and the “average audience” test

Copyright law has long tolerated trivial copying under the maxim de minimis non curat lex — the law does not concern itself with trifles. In the infringement context, the doctrine asks whether the copying is so quantitatively and qualitatively insignificant that it falls below the threshold of substantial similarity required for liability. The Ninth Circuit’s settled test asks whether an average audience would recognize the appropriation; if the borrowed material is unrecognizable as having come from the plaintiff’s work, there is no actionable taking.

Applying that standard, Judge Graber’s opinion worked through both the composition and the sound-recording claims. As to the composition, the court agreed that the horn material was too brief and generic to support a finding of substantial similarity. As to the sound recording, the court assumed for argument that Pettibone had in fact copied the 0.23-second horn hit, then asked whether a general listener would recognize that snippet as lifted from “Love Break.” It concluded no reasonable juror could so find. The fragment was minuscule, altered, and embedded in a vastly different production; ordinary listeners simply would not perceive the appropriation.

Splitting with Bridgeport

The harder question was legal, not factual. In Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), the Sixth Circuit had announced a categorical rule for sound recordings: “Get a license or do not sample.” On that view, the de minimis defense simply does not apply to sound-recording copyrights, so even the smallest unauthorized sample infringes. Bridgeport had become a touchstone for the music industry’s licensing practices, and VMG urged the Ninth Circuit to follow it.

The Ninth Circuit declined, and explained why at length. Bridgeport had reasoned chiefly from the text of 17 U.S.C. Section 114(b), which says the exclusive right in a sound recording does not extend to an independently created recording that imitates or simulates the original. The Sixth Circuit read that provision to imply that any actual sampling — copying the recording itself — infringes regardless of amount. Judge Graber found that inference unpersuasive. Section 114(b), she explained, limits a rightsholder’s exclusivity (by carving out sound-alikes); it does not enlarge it by abolishing the de minimis principle that applies to every other category of copyrighted work. Nothing in the statute’s text or legislative history signaled that Congress meant to treat sound recordings uniquely harshly. Recognizing the consequences, the court openly acknowledged it was creating a circuit split rather than strain to reconcile the two lines of authority.

The dissent and the unresolved tension

Judge Silverman dissented. He defended Bridgeport’s bright-line approach as both legally sound and administrable, arguing that a clear “license-it” rule serves the music industry better than a “fuzzy” case-by-case de minimis inquiry that forces courts and juries to parse fractions of a second. In his view, taking even a tiny piece of someone’s fixed recording is taking something that belongs to the owner, and the majority’s rule invites uncertainty about how small is small enough.

The split the majority created has never been resolved by the Supreme Court, leaving sampling liability geographically contingent. A producer who lifts a fragment may face a near-automatic infringement finding in the Sixth Circuit yet have a viable de minimis defense in the Ninth. The court also vacated the district court’s award of attorney’s fees to the defendants and remanded that question, recognizing that the fee analysis had to be reconsidered. The result was a clear win for Madonna and Pettibone on the merits and a clear marker of doctrinal division for everyone else.

Open questions

Will the Supreme Court resolve the split? The Ninth and Sixth Circuits remain at odds on whether de minimis applies to sound recordings, and no controlling national rule exists.
How small is “de minimis”? The average-audience test is fact-specific; producers cannot know in advance precisely how brief or altered a sample must be to escape liability.
Does digital sampling change the calculus? As manipulation makes tiny fragments musically useful, courts may face increasingly granular disputes about recognizability.

Implications

Geography matters for sampling risk. A de minimis defense may succeed in the Ninth Circuit but fail under Bridgeport in the Sixth, so forum and exploitation territory shape exposure.
Recognizability is the touchstone. In the Ninth Circuit, the question is whether an average listener would recognize the borrowed material, not whether any copying occurred.
Licensing remains the safe path. Because the split is unresolved, clearing samples is still the prudent industry practice regardless of how brief the fragment is.
Section 114(b) cuts the other way. The Ninth Circuit read the sound-alike carve-out as limiting, not expanding, a sound-recording owner’s rights.
Fee awards follow the merits. The court’s vacatur of the defendants’ fee award shows that prevailing-party fees in copyright cases remain discretionary and reviewable.

Frequently asked questions

What did VMG Salsoul v. Ciccone hold about music sampling? The Ninth Circuit held that the de minimis exception applies to alleged copying of sound recordings, so an unauthorized sample that an average listener would not recognize as taken from the original is not actionable infringement.

How does this case create a circuit split? It expressly disagreed with the Sixth Circuit’s 2005 decision in Bridgeport Music v. Dimension Films, which held that any unauthorized sampling of a sound recording, no matter how small, infringes. The Ninth Circuit rejected that bright-line “get a license or do not sample” rule.

What was actually sampled in Vogue? The plaintiff alleged that producer Shep Pettibone copied a horn segment of no more than 0.23 seconds from the Salsoul Orchestra’s “Ooh I Love It (Love Break)” and used a modified version of it in Madonna’s “Vogue.” The court found any such copying was trivial and de minimis.