Madonna’s Vogue did not break copyright law, even though it contained a snippet of another artist’s song, a US court has ruled.
The case revolved around a horn “hit”, which was allegedly lifted from the Salsoul Orchestra track Love Break.
But the US 9th Circuit Court of Appeals said the sample lasted less than a second, and would not have been recognisable to the general public
“Without careful attention, the horn hits are easy to miss,” it said.
Producer Shep Pettibone worked on both Vogue and Love Break. The one-note horn sequence in contention lasted just 0.23 seconds, the court heard.
You can hear the original at 4’40” in this clip, and at 1’02” in Madonna’s track.
“After listening to the recordings,” wrote judge Susan P Graber, “we conclude that a reasonable jury could not conclude that an average audience would recognise the appropriation of the composition”.
However, the court’s decision was not unanimous, with Judge Barry G Silverman arguing that the uncredited sample, if proven, would amount to theft.
“It is no defence 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”.
The ruling could lead to short samples becoming more commonplace.
However, as The Hollywood Reporter points out, the California court’s decision directly contradicts a 2006 case presented in the 6th Circuit (Tennessee).
That revolved around an NWA song that sampled a riff from George Clinton’s band Funkadelic. At the time, a 6th Circuit judge wrote: “Get a license or do not sample. We do not see this as stifling creativity in any significant way.”