Madonna did not violate copyright law when her producer allegedly borrowed snippets of music from another recording for her hit song “Vogue,” a federal appeals court decided 2-1 Thursday.
The U.S. 9th Circuit Court of Appeals said the horn segment at the heart of the copyright lawsuit lasted less than a second and would not have been recognizable to a general audience.
“The horn hit occurs only a few times in ‘Vogue,’” wrote Judge Susan P. Graber for the majority “Without careful attention, the horn hits are easy to miss.”
VMG Salsoul, LLC, which holds a copyright to “Love Break,” sued Madonna and others, alleging that Shep Pettibone, the producer of “Vogue,” copied a 0.23-second segment of horns from “Love Break,” which he had worked on years earlier. “Vogue” was a hit in the early 1990s.
“After listening to the recordings,” Graber wrote, “we conclude that a reasonable jury could not conclude that an average audience would recognize the appropriation of the composition.”
Judge Barry G. Silverman dissented, arguing that the use of the horn segments, if proven, would amount to theft.
“It is no defense to theft that the thief made off with only a ‘de minimis’ part of the victim’s property,” Silverman wrote.
He said a copyright of a recording amounted to a “valuable property right, the stock-in-trade of artists who make their living recording music and selling records.”
Silverman favored adopting a legal rule that has governed the music industry in Nashville.
That rule, established by a different federal appeals court, requires artists to obtain a license to use an identical copy of a copyrighted sound recording.