Appeals court rules brief "Vogue" horn sample was not copyright infringement

The 9th Circuit Court affirmed today that a quarter-second sample used by Madonna didn't infringe the copyright of the original artist. Billboard reports that 1990 hit Vogue's use of a brass hit from 1976's "Love Break" was so small as to be trivial.

"After listening to the audio recordings submitted by the parties, we conclude that a reasonable juror could not conclude that an average audience would recognize the appropriation of the horn hit," writes 9th Circuit judge Susan Graber in today's opinion. "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 recognized 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."

The ruling seems to run counter to other recent courtroom action where a song was found to infringe a Marvin Gaye classic despite containing no samples of it at all. But things are complicated in copyright! Note that the court listens to the recordings: subjective similarity is at hand, not just technology. Which perhaps explains why an extensively imitative passage with no direct sampling might be found infringing, but a short sample re-used in a novel and transformative way is not.

Update. Cory adds:

The 9th circuit court found that the sample was "de minimus" — too
small to bother with. That's a circuit split with Bridgeport Music, Inc.
v. Dimension Films, where the Sixth ruled that even two seconds of a
sample, even distorted beyond recognition, was not de minimus.

This may tee up a Supreme Court hearing, because that's where circuit
splits often head.

But neither case turned on fair use, which would, in theory, create a
much more expansive sampling right. There have been some very favorable
fair use rulings lately (Oracle, Hathi Trust), and the Supremes have
turned down some of these for certori, meaning that they largely agreed
with expansive fair use doctrines and suggests they wouldn't hear a fair
use based case that ruled in favor of the sampler, and might overturn
one that went the other way.

The caselaw on sampling and fair use is REALLY thin, mostly this 2 LiveCrew case, where the sample was part of a work that commented on the person they
were sampling, a much easier fair use case to make than the a broader
fair use claim (such as one that argued that the taking was small
enough, and the impact on the artist's legitimate markets was
insignificant enough, that the sample was legal).

That kind of fair use of sampling might enable the legal production of
hip-hop in the mode of the two most successful genre albums of all time
(Nation of Millions, Paul's Boutique), both of which would be impossible to make under current sampling practice