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In a 2-1 vote, the 9th U.S. Circuit Court of Appeals in
Pasadena, California ruled that a general audience would not
recognize the 0.23-second snippet in "Vogue" as originating from
the song "Love Break."
Shep Pettibone, a producer of "Vogue," also recorded "Love
Break" in the early 1980's, according to the court ruling.
The plaintiff, VMG Salsoul LLC, owns the copyright to "Love
Break" and alleged Pettibone sampled the "horn hit" from the
earlier work and added it to "Vogue."
But the appeals court ruled in favor of Madonna, Pettibone and
other defendants including Warner Bros Records.
"Defendants copied, at most, a quarter-note single horn hit and
a full measure containing rests and a double horn hit," Circuit
Judge Susan Graber wrote for the majority. "A reasonable jury
could not conclude that an average audience would recognize an
appropriation of the 'Love Break' composition."
The dissenting judge, Barry Silverman, said even a small sample
of music, used without a license, should be a copyright
violation. "In any other context, this would be called theft,"
Silverman wrote.
Robert Besser, a lawyer for VMG Salsoul, said in a phone
interview: "I agree with the dissent because it should be an
infringement for copying any piece of any sound recording." He
said his client would review its legal options.
A lawyer for Madonna could not immediately be reached for
comment.
(Additional reporting by Jonathan Stempel)
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