Intellectual Property Law

New Matter SUMMER 2017, Volume 41, Number 3

Case Comments

Lowell Anderson

Stetina Brunda Garred & Brucker

COPYRIGHT – DE MINIMUS

A 1990’s Madonna hit song titled "Vogue" contained one 0.23 second single horn hit physically sampled from the sound recording titled Love Break and also contained six, two horn hits lasting under a second, each of which were created from that sampled single horn hit. "We hold that the ‘de minimis exception applies to infringement actions concerning copyrighted sound recordings, just as it applies to all other copyright infringement actions." "A ‘use is de minimis only if the average audience would not recognize the appropriation.’" "A reasonable jury could not conclude that an average audience would recognize the appropriation of the Love Break composition" or of the sound recording as other instruments were simultaneously heard and even Plaintiff’s expert erred in discerning which parts of the song were copied. 17 U.S.C. § 106(1)-(2) and 114(b) allows a sound recording to be imitated by independent fixation but the limitation of § 114(b) does not prevent a de minimis copying requirement. Contrary to Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), which set out a bright line rule making any physical copying or sampling of a sound recording an infringement. Summary judgment of non-infringement was affirmed. Judge Silverman dissented and would not create a circuit split. VMG Salsour, LLC. v. Ciccone, LEXIS 10017 (9th Cir. June 2, 2016).

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