VMG Salsoul, LLC v. Ciccone, No. 13-57104 (9th Cir. 2016)Annotate this Case
VMG filed a copyright infringement suit against Madonna and others, alleging that the producer of the song "Vogue," copied a 0.23-second segment of horns from an earlier song, known as "Love Break," and used a modified version of that snippet when recording "Vogue." The district court granted summary judgment to defendants and awarded them attorney's fees under 17 U.S.C. 505. VMG appealed. The court agreed with the district court's application of the longstanding legal rule that de minimus copying does not constitute infringement and that a general audience would not recognize the brief snippet in "Vogue" as originating from "Love Break." The court rejected VMG's argument that Congress eliminated the de minimis exception to claims alleging infringement of a sound recording. The court recognized that the Sixth Circuit held to the contrary in Bridgeport Music, Inc. v. Dimension Films, but found Bridgeport's reasoning unpersuasive. The court held that the de minimus exception applies to infringement actions concerning copyrighted sound recordings, as it applies to all other copyright infringement actions. Accordingly, the court affirmed the district court's grant of summary judgment to defendants. In regard to the attorney's fees, the court concluded that the district court abused its discretion. A claim premised on a legal theory adopted by the only circuit court to have addressed the issue is, as a matter of law, objectively reasonable. The district court’s conclusion to the contrary constitutes legal error.
Court Description: Copyright. The panel affirmed the district court’s summary judgment in favor of the defendants and vacated an award of attorney’s fees on a claim that in the Madonna song Vogue, a modified version of a horn segment allegedly copied from a song known as Love Break violated the plaintiff’s copyrights to Love Break. VMG SALSOUL V. CICCONE 3 Affirming the district court’s summary judgment, the panel held that any copying that occurred was “de mimimis” and not an infringement of either the composition or the sound recording of Love Break. The panel agreed with the district court that, as a matter of law, a general audience would not recognize the brief snippet in Vogue as originating from Love Break. Disagreeing with the Sixth Circuit, the panel held that Congress did not eliminate the de minimis exception to claims alleging infringement of a sound recording in 17 U.S.C. § 114(b). The panel held that the district court abused its discretion in granting attorney’s fees to the defendants under 17 U.S.C. § 505. The panel held that a claim premised on a legal theory adopted by the only circuit court to have addressed the issue is, as a matter of law, objectively reasonable. Dissenting, Judge Silverman wrote that the court should follow the Sixth Circuit and hold that the use of an identical copy of a portion of a copyrighted fixed sound recording is an infringement.