Madonna Doesn’t Need a License to “Vogue”

Erin E. Rhinehart, a managing editor of TYL, is an attorney with Faruki Ireland & Cox PLL in Dayton, Ohio.

A federal court in California ruled in favor of the Material Girl, finding that her 1990 hit “Vogue” does not contain an illegal sample. VMG Salsoul, LLC v. Madonna Louise Ciccone, Case No. CV 12-05967 (C.D. Cal. 2012). Last July, VGM Salsoul, the copyright owner of a decades-old composition called “Love Break,” filed suit against Madonna and her producer, Robert “Shep” Pettibone, among others, for copyright infringement. Why the wait to file suit? VMG Salsoul argued that it was only through new technology that the “deliberately hidden” sampling was detected.

The court did not agree with the plaintiff that Madonna’s use of “a single horn stab” (i.e., one chord) eleven times during her hit song, without first obtaining a license to do so, was in violation of copyright laws. The court found that the alleged appropriation was not subject to copyright protection as it lacked originality. And even if copyrightable, the alleged copying was de minimis.

VMG Salsoul is in stark contrast to the infamous 2006 decision by the Sixth Circuit in Bridgeport Music v. Dimension Films, 410 F.3d 792 (6th Cir. 2005). In Bridgeport, the Sixth Circuit reversed the trial court’s decision and found that the sampling of a two-second guitar chord in an N.W.A. rap song without a license was improper: “Get a license or do not sample.”

Copyright lawyers across the country were anxious to see whether the California court would follow in the Sixth Circuit’s footsteps. Judge Beverly O’Connell, however, declined to adopt a bright-line rule regarding sampling. Instead, VMG Salsoul stands for the somewhat unremarkable proposition that use of a single chord is “trivial” and insufficient to necessitate the need to obtain a license before the chord is used.

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