In Bridgeport Music v. Dimension Films, the Sixth Circuit eliminated the "de minimis" use exception, which excused a trivial amount of copying, as an available defense for unauthorized use of sound recordings. 410 F.3d 792, 800 (6th Cir. 2005). Under Bridgeport, a recording artist who samples even an unrecognizable portion of another's song is automatically liable for copyright infringement. This month, in VMG Salsoul, LLC v. Madonna Louise Ciccone, et al., the Ninth Circuit rejected Bridgeport's bright-line infringement rule for sound recordings. As the first circuit court to challenge the Bridgeport court's "get a license or do not sample" rule, the Ninth Circuit held that the use of a 0.23-second sample of a horn hit featured in Madonna's early 1990's hit-single, Vogue, did not constitute copyright infringement. No. 13-57104, 2016 WL 3090780, at *1 (9th Cir. June 2, 2016). Acknowledging that it took "the unusual step of creating a circuit split," the VMG Salsoul court made clear that the complete prohibition of even an unrecognizable amount of copying is out of tune with copyright jurisprudence. 2016 WL 3090780, at *11.
The Ninth Circuit is not alone in its assault on Bridgeport. Indeed, as VMG Salsoul indicates, "the leading copyright treatise" considers the statutory analysis conducted by the Bridgeport court to be a "logical fallacy." Id. at *14. According to Nimmer on Copyright, the Bridgeport court misinterpreted section 114(b) of the copyright act which immunizes the maker of a “sound alike” recording from liability. 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.03[A][b], at 13-61. Section 114(b) provides that if no sounds are recaptured, then the maker of the "sound alike" is categorically exempt from liability to the owner of the sound recording. 17 U.S.C. § 114(b). From that proposition, the Bridgeport court summarily reasons that if some sounds are recaptured, then the newcomer is totally liable. Nimmer § 13.03[A][b], at 13-62 (citing Bridgeport, 410 F.3d at 800–01). To further undermine the Bridgeport court's statutory analysis, the court in VMG Salsoul provided the following analogy: "if it has rained, then the grass is not dry," does not necessarily mean that "if it has not rained, then the grass is dry." 2016 WL 3090780, at *10. Someone could have watered the lawn for instance. Id. Based on its reading of section 114(b), Bridgeport categorically banned the de minimis use exception—available in all other Copyright infringement actions—for use of sound recordings.
After rejecting Bridgeport, the VMG Salsoul court disposed of the plaintiff's substantive copyright infringement argument through its examination of the de minimis principle. A "use is de minimis only if the average audience would not recognize the appropriation." Newton v. Diamond, 388 F.3d 1189, 1193 (9th Cir. 2004). As part of applying this rule to the facts, the VMG Salsoul court picked up on a noteworthy "quirk" in the procedural history of the case. 2016 WL 3090780, at *6. Originally, the plaintiff's expert concluded that both a single horn hit and a double horn hit were sampled from the plaintiff's song, Love Break. Later, the plaintiff's expert had an opportunity to hear the original horn hits from Vogue, without interference from other instruments, and found that only a single horn hit was sampled. Id. In holding that the de minimis use exception applied, the court reasoned that if a highly trained musician listening to the recordings with the express aim of determining which parts had been copied could not do so accurately, an average audience could not do better. Id.
While VMG Salsoul is the only circuit court decision to denounce Bridgeport, district courts not bound by Bridgeport have consistently declined to apply it. Illustratively, in Saragama India Ltd. v. Mosely, a Southern District of Florida court rejected the plaintiff's argument that Bridgeport should govern the defendant's sampling of a one-second snippet from the plaintiff's sound recording. 687 F. Supp. 2d 1325, 1338 (S.D. Fla. 2009). Instead, the court applied traditional copyright infringement analysis and determined that an average lay observer would not confuse the works at issue. Id. In Pryor v. Warner/Chappell Music, Inc., a Central District of California court rejected Bridgeport, but nonetheless found the sampling of a half-second snippet of the words "get down" from the plaintiff's song to be qualitatively significant. No. CV 13-04344 RSWL, 2014 WL 2812309, at *7 (C.D. Cal. June 20, 2014). Despite the sample’s short duration, the Pryor court applied the de minimis principle and reasoned that an average audience could potentially recognize the appropriation. Id.
Given the uneven application of the de minimis use exception, VMG Salsoul provides a much needed first step in defining the permissible bounds of unauthorized sampling. Indeed, the decision could pave the way for reform of the licensing regime for digital samples that took root after Bridgeport. In the meantime, rather than seek permission, music samplers may risk litigation in greater numbers due to the increased viability of the de minimis exception. With the Ninth Circuit entering the fray, it is feasible that the Supreme Court will weigh in and resolve what has long been an ill-defined aspect of music copyright.