Salsoul, LLC v. Madonna Louise Ciccone
D.C. No. 2:12-cv-05967-BRO-CW (2016)
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Rule of Law:
The longstanding copyright principle of de minimis non curat lex (“the law does not concern itself with trifles”) applies to infringement actions concerning copyrighted sound recordings. A use is de minimis, and therefore not infringing, if the average audience would not recognize the appropriation.
Facts:
- In the early 1980s, producer Shep Pettibone recorded the song 'Ooh I Love It (Love Break)', to which Plaintiff VMG Salsoul, LLC, holds the copyrights.
- The sound recording of 'Love Break' contains a brief horn segment, or 'horn hit', comprised of a four-note chord lasting 0.23 seconds.
- In 1990, Madonna and Pettibone recorded the commercially successful song 'Vogue'.
- VMG Salsoul alleges that when creating 'Vogue', Pettibone sampled the 0.23-second horn hit from 'Love Break'.
- The alleged sample was not used precisely; it was transposed to a different key, truncated to make it 'punchier', and overlaid with other sounds and effects.
- This modified horn hit appears five or six times throughout the several-minute-long song 'Vogue'.
Procedural Posture:
- VMG Salsoul, LLC, sued Madonna, Shep Pettibone, and other defendants in a federal district court for copyright infringement.
- The district court granted summary judgment in favor of the defendants.
- The district court reasoned that even if copying occurred, the use of the horn hit was de minimis and thus not actionable as infringement.
- The district court also awarded attorney's fees to the defendants.
- VMG Salsoul, LLC, as appellant, appealed both the summary judgment order and the award of attorney's fees to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does the longstanding de minimis exception, which excuses trivial copying from copyright liability, apply to infringement claims involving the digital sampling of a copyrighted sound recording?
Opinions:
Majority - Graber, Circuit Judge
Yes, the de minimis exception applies to copyright infringement claims for sound recordings. For an unauthorized use of a copyrighted work to be actionable, the copying must be substantial enough for an average audience to recognize the appropriation. Here, after listening to the recordings, the court concluded that no reasonable jury could find that an average audience would recognize the brief, modified horn snippet in 'Vogue' as originating from 'Love Break'. The court explicitly rejected the Sixth Circuit's bright-line rule from Bridgeport Music, Inc. v. Dimension Films, which held that any sampling of a sound recording is infringement. The majority found no support in the statutory text or legislative history of the Copyright Act for treating sound recordings differently from other copyrighted works and criticized Bridgeport's reasoning as resting on a logical fallacy.
Dissenting - Silverman, Circuit Judge
No, the de minimis exception should not apply to the sampling of copyrighted fixed sound recordings. The dissent argues that unauthorized digital sampling is a 'physical taking' akin to theft, where the amount taken is irrelevant to the act of theft itself. It endorses the Sixth Circuit's bright-line rule in Bridgeport: 'Get a license or do not sample.' The dissent interprets 17 U.S.C. § 114(b) as granting sound recording copyright holders the exclusive right to sample their own work, a right that is infringed by any unauthorized copying, no matter how small. It warns that the majority's decision creates a circuit split, providing a lower level of copyright protection in the Ninth Circuit and undermining the goal of uniform copyright law.
Analysis:
This decision creates a significant circuit split with the Sixth Circuit's influential opinion in Bridgeport Music, Inc. v. Dimension Films. By affirming the applicability of the de minimis defense to sound recording sampling, the Ninth Circuit provides more leeway for artists to incorporate trivial, unrecognizable samples into new works without licensing. This ruling decreases the scope of protection for sound recording copyright holders in the Ninth Circuit, potentially leading to different licensing practices and litigation outcomes depending on the jurisdiction. The case solidifies the 'average audience' test as the standard for triviality in the Ninth Circuit for all types of copyrighted works.
