## Facts

- VMG Salsoul, LLC owned copyrights in the musical composition and sound recording “Ooh I Love It (Love Break)” (“Love Break”), which contains recurring horn “hits,” including a single-horn hit lasting about 0.23 seconds.
- Defendants associated with Madonna’s song “Vogue” allegedly sampled and modified a 0.23-second horn hit from “Love Break” without permission.
- In “Vogue,” the challenged horn sound appeared in a different key and on different notes, was mixed amid many other instruments, and included additional overlay sounds (e.g., cymbal).
- The district court granted summary judgment to defendants, concluding any copying was de minimis and therefore noninfringing, and awarded defendants attorney’s fees under 17 U.S.C. § 505.
- On appeal, the court assumed copying for purposes of summary judgment and addressed whether any copying was legally actionable and whether fees were proper.

## Issues

1. Whether the de minimis doctrine applies to alleged infringement of copyrighted sound recordings under 17 U.S.C. § 114(b), or whether any unauthorized digital sample is actionable per se.
2. Whether the alleged use of the horn hit in “Vogue” was more than de minimis under the ordinary-listener standard for substantial similarity.
3. Whether the plaintiff’s theory was objectively unreasonable such that attorney’s fees were warranted under 17 U.S.C. § 505.

## Decision

- The court affirmed summary judgment for defendants, holding the de minimis doctrine applies to sound recordings.
- The court held that, even assuming copying, the alleged use was de minimis as a matter of law because a general audience would not recognize the snippet in “Vogue” as originating from “Love Break.”
- The court vacated the attorney’s fee award and remanded, holding the district court abused its discretion by treating the plaintiff’s position as objectively unreasonable.

## Legal Principles

- De minimis copying can defeat a copyright infringement claim, including claims involving sound recordings.
- For substantial similarity in this context, the focus is whether an average or general audience would recognize the appropriation from the copyrighted work in the accused work.
- Section 114(b) defines the scope of sound recording rights but does not eliminate ordinary infringement doctrines such as de minimis use.
- Under 17 U.S.C. § 505, objective reasonableness is a significant factor; a claim based on a legal rule adopted by the only circuit to have addressed the issue can be objectively reasonable, even if unsuccessful.

## Conclusion

The Ninth Circuit held that de minimis analysis applies to sound recordings and that the alleged horn-hit sampling in “Vogue” was not actionable because ordinary listeners would not recognize it as taken from “Love Break,” while also vacating a fee award because the plaintiff’s legal theory was objectively reasonable.


VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016)