The link provided below directs readers to an article written by Christie Eliezer on November 2013. It addresses the big win for Madonna and her producer, Robert “Shep” Pettibone, who were caught up in a lawsuit for allegedly sampling a section of music in Madonna’s hit single Vogue.
Salsoul Orchestra sued Madonna for using the strings and horns from their 1977 song Ohh, I Love It (Love Break). They claimed the Queen of Pop illegally sampled their music. Now, for this to be the case, Madonna (and producer) must have taken a substantial section of Salsoul Ochestra’s song without their permission. Note that merely using a small portion of another artist’s song does not necessarily mean a substantial portion has not been used and does not excuse anyone from the consequences of sampling. The test really lies in whether the section of music used goes to the heart of the song, is distinctive, or has that flare that listeners identify with belonging to the original piece of music.
In the United States, and particularly in the District Court of California where Madonna’s case was heard, it was once the standard to find in favour of sampling even for the smallest portion of music used. Luckily for Madonna, the judge in her matter ruled against that standard. The judge adduced that the section of music used in Vogue was “trivial” and unidentifiable by listeners. In fact, so ‘unidentifiable’ was the portion of music in question that it even took Salsoul Orchestra 20 years to find their own instrumental segment “hidden” in the tune of the mega-hit single and commence proceedings.
This raises the issue of whether it matters, in principle, if a listener can easily identify a piece of music as belonging to another artist for it be a viable case of sampling? In essence, has the tree fallen if no one hears it?
The answer to all of the above is yes. Yes, the tree has fallen. Yes, the music has been used without permission, regardless of how much of it has been used and regardless of whether listeners can identify it. The fact of the matter is, no matter how “trivial” the portion of music used might be, should that portion have been used to create a new successful song … say one that has sold over 6 million singles and belonged to a certain pop priestess… the original copyright owner should have the legal right to seek a proportion of the profit made from the exuberant success of the subsequent song.
Granted it only took a mere 20 years to commence proceedings, however (putting aside any questions as to limitation periods) it is justifiable for SalSoul Orchestra to have fought for what they believed rightfully contributed to a pop classic. The law, as demonstrated by this case, often raises many opinion based issues. As such, it can be difficult to assess whether a judge’s ruling is just. Essentially, readers’ opinions about this matter may be likened to their views about the fallen tree.
Thanks to Talla Ansari for this article.