It's not your material, girl! Madonna wins copyright case despite sampling horn riff on hit track Vogue

  • Madonna used a sample from a 1980s funk track by the Salsoul Orchestra
  • The band sued Madonna and producer Shep Pettibone over the sample 
  • A court ruled the sample was 'too small' to be worthy of compensation
  • A dissenting judge accused Madonna of theft despite the small sample 
  • See more of the latest Madonna news at www.dailymail.co.uk/madonna

By Darren Boyle for MailOnline

Published: 06:53 EST, 3 June 2016 | Updated: 09:55 EST, 3 June 2016

Madonna has won a copyright case involving her 1990 hit Vogue despite a court ruling she had sampled a horn riff from a 1980s funk track. 

The superstar was sued by the copyright owners to the Salsoul Orchestra funk ensemble, who claimed Madonna took part of the horn section from their track 'Ooh I Love It (Love Break)". 

The original track was produced by Shep Pettibone, who later went on to make Vogue with Madonna. 

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Madonna, pictured performing Vogue at the MTV Video Music Awards in 1990 has won a copyright case over a sample taken from a 1980s track by Salsoul Orchestra funk ensemble which was produced by Shep Pettibone

Madonna, pictured performing Vogue at the MTV Video Music Awards in 1990 has won a copyright case over a sample taken from a 1980s track by Salsoul Orchestra funk ensemble which was produced by Shep Pettibone

Pettibone worked with Madonna on her 1990 hit Vogue and used the sample from the earlier track 

Pettibone worked with Madonna on her 1990 hit Vogue and used the sample from the earlier track 

The court upheld an earlier decision that the sample was too small to warrant any form of compensation 

The court upheld an earlier decision that the sample was too small to warrant any form of compensation 

VGM Salsoul sued Madonna and demanded compensation for using part of their band's track. 

However, the US Court of Appeals for the Ninth Circuit upheld a 2013 decision of a lower court which found the section taken by Madonna was too trivial to warrant attention. 

They said the snippet was 'de minimis' and not worthy of compensation. 

Judge Susan Graber of Portland Oregon ruled: 'We conclude that a reasonable juror could not conclude that an average audience would recognize the appropriation of the horn.'

While changing little for Madonna, the ruling could help future artists using samples as it puts the Ninth Circuit, which covers California, directly at odds with another federal appeals court.

In a 2005 ruling known as the Bridgeport case, the Sixth Circuit which includes the music hub of Nashville ruled against gangsta rappers N.W.A. whose '100 Miles and Runnin'' sampled a brief guitar riff from funk greats Funkadelic.

That decision, which said that even small samples warranted copyright protection, led to a surge in lawsuits of artists seeking compensation.

It is no defense to theft that the thief made off with only a "de minimis" part of the victim's property 
Dissenting judge Barry Silverman 

In Thursday's decision, Graber acknowledged the Bridgeport case but said that the court found the Sixth Circuit's reasoning 'unpersuasive'.

In a dissent, Judge Barry Silverman said that use of the sample on 'Vogue' rather than hiring new musicians or paying for a license amounted to theft.

He wrote: 'It is no defense to theft that the thief made off with only a "de minimis" part of the victim's property.' 

Silverman said the latest decision would cause confusion at a national level more than a decade after the Bridgeport ruling, adding that Congress was the more appropriate venue to change rules.

The latest ruling did offer one consolation to the plaintiffs, striking down the lower court's decision to force them to pay the legal fees of Madonna and Pettibone.

Graber said it had not been unreasonable for the plaintiffs to file a lawsuit, even if the court ultimately did not agree.

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