Future of Music Coalition

by Michelle Gilzenrat Davis, FMC Legal Intern 

Is one horn hit sufficiently original and non-trivial to be protected by copyright?  No it’s not, says The U.S. District Court of the Central District of California.

In a summary judgment decision filed on Monday, Nov. 18, Judge Beverly Reid O’Connell held that the horn sample allegedly used in Madonna’s double-platinum 1990 hit “Vogue” was not subject to copyright protection because it “lacks originality” and, even if it were copyrightable, the alleged copying is “de minimis.”

For those of you may not be fluent in Latin/legalese, “de minimis” means, literally, “about minimal things.” In sampling cases, it refers to the level below which courts deem the amount a musician takes from a copyrighted work too small to consider copyright infringement. A de minimis standard can be measured quantitatively or qualitatively, and the California court seems to use both in its reasoning. Judge O’Connell notes that the horn hit in Madonna’s song is short in length— just single chord that is repeated percussively. She also notes that the hit is not a component of the “hook” in the plaintiff’s song, “Love Break,” from which the sample was supposedly cribbed. In total, “no reasonable audience” would find the sampled portions significant “nor would they recognize the appropriation.”