The mere mention of Madonna conjures many images and associations: feminism, reinvention, Kabbala, the cone bra, and her many memorable performances. But today we have yet another thing to associate with the Material Girl: an appellate court split on whether or not music sampling without a license amounts to copyright infringement. By definition, “music sampling” is the physical copying of sounds from an existing recording for use in a new recording, even if slight changes are made to the pitch or tempo.

Last month, the 9^th Circuit held in VMG Salsoul, LLC v. Ciccone that Madonna was not liable for copyright infringement for including a 23 second-long horn blast sample from the 1977 song “Love Break” in her 1990 hit “Vogue.” What makes this decision particularly interesting is that it directly conflicts with the 2005 ruling handed down by the 6^th Circuit in Bridgeport Music v. Dimension Films, which held that the “de minimis” exception, which excuses the unauthorized use of a small amount of copyrighted work, does not apply to sound recordings.

Prior to the Bridgeport decision, sampling was commonplace in the music industry, especially in hip hop and electronic music, and the rulings on what amount of sampling was permissible were unclear. The 6^th Circuit was the first appellate court to rule on the matter and it issued a bright-line rule that any amount of sampling without a license – no matter how small – amounts to copyright infringement. The Bridgeport rule is simple: “Get a license or do not sample.” The decision caused artists to either seek licenses for every music sample incorporated into their work or risk copyright infringement liability. While many lower courts declined to follow the 6^th Circuit decision, Bridgeport has been the leading appellate ruling on the issue until the 9^th Circuit issued its contrary decision. The 9^th Circuit held that the “de minimis” exception applies to sound recordings just as it does to other forms of copyrighted work and that their sister appellate court erred in its 2005 decision.

The 9^th Circuit’s decision in VMG Salsoul is particularly interesting in that the court deliberately created a circuit split. This was a controversial and unusual step as applied to copyright law, as it will result in artists having different levels of protection in different jurisdictions, even if the alleged infringement is nationwide. Acknowledging that its ruling contrary to the 6^th Circuit will have adverse consequences, the court nevertheless justified the decision by citing a duty to independently determine congressional intent, rather than follow a prior decision which it believes to be in error.

Another interesting aspect of the 9^th Circuit’s decision is the court’s deference to Nimmer on Copyright, the leading treatise on U.S. copyright law. David Nimmer, the treatise author, has been an outspoken opponent of the Bridgeport ruling, arguing that the 6^th Circuit erred in creating a bright-line rule against any amount of unlicensed music sampling.  In a prior copyright case before the 9^th Circuit, Seven Arts Filmed Entertainment Ltd. v. Content Media Corp., the 9^th Circuit declined to create a circuit split, noting in its decision that Nimmer, “the leading copyright treatise,” agreed with the views of its sister circuits. In VMG Salsoul ,  the court supported its decision to create a split by citing Nimmer’s view that the 6^th Circuit’s ruling was wrong. The dissenting opinion criticizes the majority’s decision to follow the views of a popular treatise rather than an established decision by a sister circuit.

The recent 9^th Circuit decision, rendered by a circuit with arguably the most influence over the music industry, is a ray of light for legal scholars, copyright attorneys and artists who have long disagreed with the bright-line ban on unauthorized music sampling.  As circuit splits are relatively rare, we may very well see this issue taken up by the Supreme Court in the near future, providing nationwide guidance to recording artists on how to navigate music sampling. Like a prayer has been answered, perhaps it will officially be permissible to express yourself with a small amount of creative sampling.