Madonna Wins ‘Vogue’ Sample Lawsuit in Appeals Court
A California court has ruled in favor of Madonna regarding a lawsuit brought against her by VMG Salsoul LLC, who accused her producer Shep Pettibone of lifting a horn sample from the track “Love Break” for Madonna's 1990 hit “Vogue."
"After listening to the audio recordings submitted by the parties, we conclude that a reasonable juror could not conclude that an average audience would recognize the appropriation of the horn hit,” wrote judge Susan Graber via The Hollywood Reporter.
Graber explained the court's decision -- which ruled in favor of Madonna 2-1 -- in-depth, noting that the alleged sample is not only so brief as to be negligible, but that the two sounds aren't necessarily the same.
“That common-sense conclusion is borne out by dry analysis. The horn hit is very short — less than a second. The horn hit occurs only a few times in 'Vogue.' Without careful attention, the horn hits are easy to miss," she wrote. "Moreover, the horn hits in 'Vogue' do not sound identical to the horn hits from 'Love Break' ... Even if one grants the dubious proposition that a listener recognized some similarities between the horn hits in the two songs, it is hard to imagine that he or she would conclude that sampling had occurred."
Graber’s decision echoes a similar ruling of the same case from 2013, when a federal court in California agreed that the horn hit sample was “de minimis, meaning small enough to be trivial."
Barry Silverman, the sole opposing judge, disagreed, saying, "In any other context, this would be called theft."
VMG Salsoul's lawyer, Robert Besser, agreed with Silverman, telling Reuters via phone interview, "I agree with the dissent because it should be an infringement for copying any piece of any sound recording."
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