De Minimis Music Sampling Isn’t Infringement–Salsoul v. Madonna

There are several alternative tests for gauging “substantial similarity” in copyright cases. The flagship test is the “ordinary observer” test, but variations include the (baffling) extrinsic/intrinsic test and the abstraction-filtration-comparison test. With respect to sampling sound recordings, the Sixth Circuit’s ruling in Bridgeport Music, Inc. v. Dimension Films created another variant: any sound recording sampling, no matter how minor, was per se infringement, period. Yesterday, the Ninth Circuit rejected Bridgeport’s per se rule, holding that the “de minimis” defense (most prominently associated with Ringgold v. Black Entertainment Television) applied to music sampling.

The case involves the following songs:

Salsoul Orchestra’s “Ooh I Love It (Love Break)”

Madonna’s “Vogue” (as if you don’t already know this song by heart–“Don’t just stand there, let’s get to it!”)

While producing Vogue, well-known music producer Shep Pettibone copied a “horn hit” from the Salsoul Orchestra song. The court summarizes the plaintiff’s allegations:

Pettibone copied one quarter-note of a four-note chord, lasting 0.23 seconds; he isolated the horns by filtering out the other instruments playing at the same time; he transposed it to a different key; he truncated it; and he added effects and other sounds to the chord itself. For the double horn hit, he used the same process, except that he duplicated the single horn hit and shortened one of the duplicates to create the eighth-note chord from the quarter-note chord. Finally, he overlaid the resulting horn hits with sounds from many other instruments to create the song Vogue

The court says Pettibone engaged in de minimis copying and it isn’t infringing:

A reasonable jury could not conclude that an average audience would recognize an appropriation of the Love Break composition….The horn hit is very short—less than a second. The horn hit occurs only a few times in Vogue. Without careful attention, the horn hits are easy to miss. Moreover, the horn hits in Vogue do not sound identical to the horn hits from Love Break.

Surely it was defense-favorable that the copying here was less than a quarter-second. Still, as usual, we have no idea how much copying would cause the de minimis defense to fail. A half-note? A full note? No key transposition? Law-professor-slippery-slope alert!

Also, note how the court treats this question almost like a trademark consumer confusion inquiry. It’s like the court is asking if the average reasonable consumer would be confused about the source of the sample as having come from the Salsoul song. Indeed, the court reinforces the consumer confusion aspect: “If the public does not recognize the appropriation, then the copier has not benefitted from the original artist’s expressive content.” For those of you interested in the similarities/differences in how copyright and trademark deal with consumers’ mental processes, this opinion could support a paper topic.

To find for the defendant, the court also has to navigate around its own precedent, Newton v. Diamond, and the Bridgeport precedent. Regarding Newton, the court says:

The copied elements from the Love Break composition are very short, much shorter than the six-second sample in Newton. The single horn hit lasts less than a quarter-second, and the double horn hit lasts—even counting the rests at the beginning of the measure—less than a second. Similarly, the horn hits appear only five or six times in Vogue, rather than the dozens of times that the sampled material in Newton occurred in the challenged song in that case. Moreover, unlike in Newton, in which the challenged song copied the entire composition of the original work for the given temporal segment, the sampling at issue here involves only one instrument group out of many.

Regarding Bridgeport, the court doesn’t even try to distinguish it:

Because we conclude that Congress intended to maintain the “de minimis” exception for copyrights to sound recordings, we take the unusual step of creating a circuit split by disagreeing with the Sixth Circuit’s contrary holding in Bridgeport

Sending up a signal flare to the Supreme Court!

Underlying this case is the obvious question: why didn’t Pettibone just recreate the horn hit rather than copying it? Your attitude about this question depends on how you view creative processes. You might view Pettibone as a thief, stealing someone else’s stuff. (The dissent expresses this view). You might view Pettibone as lazy. How much time and money would it have taken to recreate the horn hit? Surely Madonna could have afforded it. (Then again, you might view it as socially wasteful to make him redo the work for such a small item). Or, you might view remixing as its own creative act, especially when dealing with small nuggets of source material.

A final note: Vogue is over a quarter-century old. Why didn’t the statute of limitations expire decades ago? To me, Petrella v. Metro-Goldwyn-Mayer is the real story of this case, effectively green-lighting demands for damages over activities that took place decades ago. If Congress wants to declutter the copyright dockets, an easy step would be to implement a proper statute of limitations and a single publication rule. Until that happens, expect more 21st century lawsuits over Generation X hits.

Case citation: VMG Salsoul v. Madonna Louise Ciccone, Nos. 13-57104 and 14-55837 (9th Cir. June 2, 2016)