Wednesday, October 26, 2016
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Court strikes copyright pose in favor of Madonna's "Vogue'"
In this Feb. 8, 2015, file photo, Madonna performs at the 57th annual Grammy Awards in Los Angeles.(Photo by John Shearer/Invision/AP, File)
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A divided federal appeals court cleared Madonna on Thursday of allegations she violated copyright law by using part of another song in her 1990 hit, "Vogue."

The horn segment the singer was accused of stealing would be unrecognizable to the average listener of "Vogue" because it is very short, occurs only a few times in the Madonna song and was modified for it, the 9th U.S. Circuit Court of Appeals ruled 2-1.

"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," Circuit Judge Susan Graber said.

The decision upheld a lower court ruling that dismissed the lawsuit against Madonna by VMG Salsoul, saying the alleged copying was trivial and fell into the "de minimis" exception under copyright law.

A call to an attorney for VMG Salsoul was not immediately returned.

The company said it owned the copyright to the song, "Ooh I Love It (Love Break)" from which Madonna stole the horn segment. Its lawsuit also named Shep Pettibone as a defendant and said it was Pettibone who sampled the horn music from "Love Break" for use in "Vogue," both songs he worked on.

Pettibone denied the allegation.

The 9th Circuit's ruling clashed with another federal circuit court, the Sixth Circuit, which held that for copyrighted sound recordings, any unauthorized copying, no matter how trivial, violates copyright law.

In a dissenting opinion, 9th Circuit Judge Barry Silverman said the majority should have followed the Sixth Circuit's logic. "It is no defense to theft that the thief made off with only a 'de minimis' part of the victim's property," he said.