Vmg Salsoul, Llc. v. Ciccone

824 F.3d 871 (9th Cir. 2016)

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Nature of the Case

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Facts

In the early 1980s, Pettibone recorded the song Ooh I Love It (Love Break), which we refer to as Love Break. In 1990, D and Pettibone recorded the song Vogue, which would become a mega-hit dance song after its release on Madonna's albums. P alleges that, when recording Vogue, Pettibone 'sampled' certain sounds from the recording of Love Break and added those sounds to Vogue. P argues that, because Vogue contains sampled material from Love Break, Ds have violated both copyrights. The horn hit appears in Love Break in two forms. A 'single' horn hit in Love Break consists of a quarter-note chord comprised of four notes-E-flat, A, D, and F-in the key of B-flat. The single horn hit lasts for 0.23 seconds. A 'double' horn hit in Love Break consists of an eighth-note chord of those same notes, followed immediately by a quarter-note chord of the same notes. P's expert identified the instruments as 'predominantly' trombones and trumpets. In Love Break, the single horn hit occurs 27 times, and the double horn hit occurs 23 times. In Love Break, the single horn hit occurs 27 times, and the double horn hit occurs 23 times. The horn hit in Vogue appears in the same two forms as in Love Break: single and double. A 'single' horn hit in Vogue consists of a quarter-note chord comprised of four notes-E, A-sharp, D-sharp, and F-sharp-in the key of B-natural. A double horn hit in Vogue consists of an eighth-note chord of those same notes, followed immediately by a quarter-note chord of the same notes. In the radio edit version of Vogue which lasts 4 minutes and 53 seconds the single horn hit occurs once, the double horn hit occurs three times, and a 'breakdown' version of the horn hit occurs once. As with Love Break, many other instruments are playing at the same time as the horns. The compilation version of Vogue lasts 5 minutes and 17 seconds. The single horn hit occurs once, and the double horn hit occurs five times. The pattern is single-double-double-double-double-double. Again, many other instruments are playing as well. The district court granted summary judgment to Ds. Neither the composition nor the sound recording of the horn hit was 'original' for purposes of copyright law. The court ruled that even if the horn hit was original, any sampling of the horn hit was 'de minimis or trivial.' P appealed.