De Minimis Music Sampling Isn’t Infringement–Salsoul v. Madonna

13 08 2016

There are several alternative tests for gauging “substantial similarity” in copyright cases. The flagship test is the “ordinary observer” test, but variations include the (baffling) extrinsic/intrinsic test and the abstraction-filtration-comparison test. With respect to sampling sound recordings, the Sixth Circuit’s ruling in Bridgeport Music, Inc. v. Dimension Films created another variant: any sound recording sampling, no matter how minor, was per se infringement, period. Yesterday, the Ninth Circuit rejected Bridgeport’s per se rule, holding that the “de minimis” defense (most prominently associated with Ringgold v. Black Entertainment Television) applied to music sampling.


Case citation: VMG Salsoul v. Madonna Louise Ciccone, Nos. 13-57104 and 14-55837 (9th Cir. June 2, 2016)

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