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Business News Legal
Appeals court upholds ruling on ‘Vogue’ sample
By Chris Cooke | Published on Friday 3 June 2016
Following the ruling in the German courts earlier this week that basically said an uncleared two second sample of a Kraftwerk track didn’t constitute copyright infringement, now the Ninth Circuit Court Of Appeals in the US has upheld an earlier ruling that a fraction-of-a-second sample in Madonna’s ‘Vogue’ also doesn’t infringe.
As previously reported, American music company VMG sued Madonna and ‘Vogue’ producer Robert ‘Shep’ Pettibone in 2012, claiming the duo illegally sampled a 1970s recording called ‘Love Break’, which the claimant owns, for their hit single back in 1990. The music firm said that Pettibone had cleverly hidden the sample, but that new technology had revealed that it is definitely there, which is why they were suing over two decades later.
But the following year, a court ruled against VMG, concluding that the 0.23 second sample was simply too short to be protected by copyright. And this week the appeals court very much concurred with that conclusion. According to The Hollywood Reporter, judge Susan Graber said: “After listening to the audio recordings submitted by the parties, we conclude that a reasonable juror could not conclude that an average audience would recognise the appropriation of the horn hit”.
The ruling went on: “That common-sense conclusion is borne out by dry analysis. 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’… Even if one grants the dubious proposition that a listener recognised some similarities between the horn hits in the two songs, it is hard to imagine that he or she would conclude that sampling had occurred”.
As much previously noted, there has been much debate over the years over whether or not tiny uncleared samples do indeed constitute copyright infringement. In the Kraftwerk case in Germany different courts have reached different conclusions, the German Constitutional Court ruling this week that any judgement to the effect that a two second sample equals infringement would negatively impact on the artistic freedom of those doing the sampling.
In the ‘Vogue’ case, however, judges seem to have reached their conclusion on the simpler basis that the sample is so slight – and inconsequential within the song – that there shouldn’t be a case for infringement.
Though, in doing so, the Ninth Circuit court arguably is in conflict with a famous ruling in American’s Sixth Circuit court over an NWA track that sampled a Funkadelic riff, the conclusion of which was a rigid “get a license or do not sample”. VMG cited that case in its appeal, though that wasn’t enough to convince the Ninth Circuit judges.
