VMG Salsoul v Ciccone

VMG Salsoul v Ciccone 824 F.3d 871 (9th Cir. 2016) is a court case that has played an important role in redefining the legal status of sampling in music under American copyright law. The case involved a claim of copyright infringement brought forth against the pop star Madonna, for sampling the horns from an early 1980s song "Ooh I Love It (Love Break)" by the Salsoul Orchestra in her international hit song "Vogue". Such sampling was done without a license, or compensation to VMG Salsoul, LLC, which was the copyright holder of "Love Break" and therefore brought suit claiming infringement and damages. The Ninth Circuit was to rule upon a contentious issue in the music industry at large, i.e. whether the de minimis defense is applicable against a claim of copyright infringement in the case of sound recording, with special regard to the practice of sampling.^[1]

The issue was brought before a federal judge, with the plaintiff claiming that both a single horn hit and a double horn hit had been copied from their work without license. However, the federal court ruled in favor of the defendants, accepting their defense under the de minimis doctrine, wherein they said only a minimal and insubstantial part of the original work had been copied in the new work. Subsequently, the U.S. Court of Appeals for the 9th Circuit affirmed the federal court's decision and reinstated the de minimis defense in the case of sound recordings. This defense had effectively been eliminated by the judgement given in Bridgeport Music, Inc. v. Dimension Films by the U.S. Court of Appeals for the 6th Circuit which established a bright-line licensing regime with regards to samples which held that license must be taken regardless of duration or substantiality of sample.^[2] The Court of Appeals for the 9th Circuit also relied on the decision given by the same court in Newton v. Diamond, 388 F.3d 1189, 1190 (9th Cir. 2003) which held de minimis as a valid defense in claims of infringement in sound recordings and to determine whether use was de minimis it must be considered whether an average audience would recognize appropriation from the original work as present in the accused work.