Madonna Dodges Copyright Theft Claim with Ninth Circuit Ruling: You Can’t Copyright the Unrecognizable

Amanda Greenspon, an Associate at Munck Wilson Mandala and part of the Firm’s Intellectual Property Section, provides counsel to companies on trademarks and copyrights. She provides perspective on the copyright litigation against pop music superstar Madonna.
At less than a quarter of a second, even a die-hard Madonna fan might miss the musical sound at the center of the copyright litigation over her dancehall smash hit, “Vogue.” But that was the issue for California’s 9th U.S. Circuit Court of Appeals, which focused on a brief sample from funk ensemble SalSoul Orchestra’s “Ooh I Love It, which was produced by the same person who later went on to work with Madonna on “Vogue” but didn’t have rights to the sample. The dispute was not over who created the sound but whether unauthorized use of such a tiny snippet of music could amount to copyright infringement. In the end, the 9th Circuit panel sided with Madonna in a 2-1 ruling, finding that such a fleeting sound is simply not recognizable to a general listening audience. Seemingly, this ruling is at odds with an earlier ruling from the 6thU.S. Circuit Court of Appeals in the so-called Bridgeport case, which found that rap group N.W.A.’s “100 Miles and Runnin” wrongly sampled a brief guitar riff from a song written by funk music icons Funkadelic. That decision, which essentially said that even small samples warranted copyright protection, led to a surge in lawsuits of artists seeking compensation. Here, the 9th Circuit appears to have set a boundary to the question of what amount of music data is too small to be considered a sample and therefore entitled to copyright protection. In this case, at least, it’s 0.23 of a second. If the Court’s opinion had gone the other way, we would have expected many more copyright lawsuits and claims by artists. But it would have been harder to determine whether the next 0.23 second actually was lifted from another song or merely sounded similar. So where do you draw the line? Just like an artist cannot own a single line of a drawing, this court found that such a small amount of material cannot be owned by an artist. What we do know is that as the digitization of music production continues, the courts will continue to struggle to keep up.

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