The Ninth Circuit Court of Appeals has held that a de minimis exception exists as a defense to copyright infringement claims related to sound recordings. The case involved the songs “Vogue” by Madonna and “Love Break” by Salsoul Orchestra.
The sampling at issue involved a “single” horn hit from “Love Break” consisting of a quarter-note chord of E-flat, A, D and F notes, played by trombones and trumpets, as well as a “double” horn hit consisting of an eighth note of those same notes, followed by a quarter-note chord. The Court found, for the purposes of a motion for summary judgment, that Madonna had actually and literally copied the horn hit from “Love Break”. Nonetheless, the Court found no copyright infringement. The court adopted the test from a previous case that a “use is de minimis only if the average audience would not recognize the appropriation” for purposes of evaluating the claims of infringement of both the composition and the sound recording. Because the sample from “Love Break” had been modified, the Court concluded there was no infringement.
Note that other Federal courts utilize a different test. Under the Sixth Circuit’s ruling in Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), no de minimis exception would be recognized for copying of sound recordings; rather, any unauthorized copying, however trivial, constitutes infringement.
You be the judge.
Video: Vogue
Video: Love Break
VMG Salsoul, LLC v. Ciccone