If It Takes You 20 Years To Notice Madonna Sampled Your Songs, Perhaps It's A Transformative Use

from the just-saying dept

Ima Fish alerts us to the news that Madonna is being sued for copyright infringement over samples in the hit song "Vogue." That song, you may recall, came out in 1990. So you might think that it's a bit late to claim copyright infringement. Why did it take so long? The copyright holder, VMG Salsoul, claims that Madonna and collaborator Shep Pettibone, used samples of its song, "Chicago Bus Stop (Ooh, I Love It)(Love Break)" and then hid them in Vogue. Yes. Hid them. Here's Chicago Bus Stop:
And here's Vogue:
If you said the two sound nothing alike, you win. Salsoul claims that Pettibone intentionally "hid" the samples:
The portions of "Love Break, which have been copied into Vogue and all its various "mixes," remixes," videos, YouTube versions, etc. are numerous but intentionally hidden. The horn and strings in Vogue are intentionally sampled from "Love Break" throughout.
The lawsuit notes that, prior to working on Vogue with Madonna, Pettibone had, in fact, worked for Salsoul, doing remixes -- and had remixed that exact song. However, the fact that it took 22 years for Salsoul to even notice certainly raises significant questions about whether this is copyright infringement. One of the issues looked at in determining fair use, of course, is whether or not the work is transformative. You would think, if the original copyright holder didn't recognize its own sample, found in one of the most popular songs of the 90s, that's a pretty good indication that it's "transformative." It certainly isn't a substitute for the original.

Of course, the law around copyright and sampling is a complete mess, thanks to some incredibly questionable rulings, such as the Bridgeport ruling in the Sixth Circuit that claimed "get a license or do not sample." That case did not look at the fair use issues at all, and had various other problems, but these issues rarely come up in court, even in other circuits, because people (on all sides) are afraid of how it will come out. This case, for what it's worth, is not in the 6th Circuit.

There are also questions about the statute of limitations -- and that's another area where copyright law is a mess, but it certainly seems like that would not stop this particular lawsuit, based on a variety of factors.

Either way, the fact that it took so long for the copyright holder to even notice seems like it should be evidence enough to dump this lawsuit in the first place, though that's unlikely to happen.

Filed Under: copyright, fair use, infringement, madonna, salsoul, samples, statute of limitations, transformative

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    Nick Dynice (profile), 2 Aug 2012 @ 12:09pm

    All I can hear is the horn stabs in the original track that start at 1:46 are at least the same chord as used throughout Vogue that first appear at 0:56. I don't see how they are hidden. All of the string parts in Vogue are either live recorded strings or a synth. If Pettibone had access to the original multi tracks maybe he could have used the string sound but it is just a long-sustaining chord.

    Imagine if the rights holder of James Brown's recordings sued everyone who used the horn stabs in Get Up Offa that Thing. That would be insanity.

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