Stealing music is legal again. On June 2, 2016, in VMG Salsoul, LLC v. Ciccone, the Ninth Circuit held that a sampled horn hit in Madonna’s “Vogue” was de minimis, infringing on neither the composition nor the recording of its source. The Ninth thus split from the Sixth Circuit’s notorious decision in Bridgeport Music, Inc. v. Dimension Films to exclude the de minimis defense from recording infringement cases — the only other circuit level case on this issue.
This article approaches the decision in VMG both positively and normatively. As a matter of positive law, the VMG court’s extension of the de minimis rule to sampled recordings walked a trail cleared by four prior district court cases. Together, these cases adumbrate an emerging de minimis rule for sampling. Normatively, arguments against extending the de minimis rule are logically incoherent. In opposing this extension, the Bridgeport court argued, in part, that the technological differences between compositions and recordings justify separate legal frameworks: The de minimis defense should be permitted for compositions, but not recordings. The argument that recordings merit this extra protection depends on two assumptions, each a species of technological essentialism: First, a digital copy always retains the essence of its source; second, recordings’ rich detail specifies an invaluable “signature sound.” Under examination, both assumptions prove unsustainable. Therefore, the emerging de minimis rule should be widely followed.