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

from the just-saying dept

Thu, Aug 2nd 2012 8:07am — Mike Masnick

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.

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

33 Comments

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Anonymous Coward, 2 Aug 2012 @ 8:16am

guess the guy has run out of money and, like the entertainment industries, wont adapt and cant produce anything new or original alone. the only choice left? try to con someone. at least his choice should be well loaded!
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Robert (profile), 2 Aug 2012 @ 8:17am

Seems Simple Enough
The guy is out for a cash grab. Madonna just signed a new deal worth $40 million and they want a cut.

Even if they get it, I doubt the original creator will get any.
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Anonymous Coward, 2 Aug 2012 @ 8:21am

If they sampled only to hide the samples what's the point?

Madonna saying fuck every artist that isn't me?

It's just an absurd claim to make.
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Anonymous Coward, 2 Aug 2012 @ 8:26am

Vogue
And if you play it backwards at 1/4 speed it plays "Follow the Yellow Brick Road" too!
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Anonymous Coward, 2 Aug 2012 @ 8:26am

Copyright
Strange game. The only winning move is not to play.
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PlagueSD (profile), 2 Aug 2012 @ 8:34am

Re: Copyright
Yep...Along with Tic-tac-toe and Global Thermonuclear War.
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Tim Griffiths (profile), 2 Aug 2012 @ 8:38am

We need to understand what new "2011 audio technology" unearthed this "hidden sample". Then we need to create a number of different songs and then run random samples we know had not be used against them using this technology and see what happens.

My bet is that you try enough samples you'll find one "hidden" in the songs we created with out ever using that sample. If you are having to dig so deeply in to the song that you need technology that has only just come about then the chances are that you are going to start running up the against the fact that there are only so many notes in some many pattens that make music senses in western music and digging about outside the range of noticeable hearing trying to find a link is just going to throw up incorrect matches.

There maybe a chance that the writer of vogue was influenced by the song that he had worked remixing and that some of that influence made it way in to Vogue and that's what the "hidden sample detecting machine" is picking up on.

Yet that's how music works... when does influence become sampled? I know I've written songs based of liking a chord patten I've heard or a given strumming patten. Does that mean if I record those songs I've sampled the things that inspired them even if the end song is fundamentally different?

The answer is no... because copyright is protection of a execution not an idea. If we go down the road that I think this case would likely open up if it's ruled to be true then people won't be able to make none infringing music with in the next 5 years.
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Anonymous Coward, 2 Aug 2012 @ 8:54am

Article should read:

22 year and Madonnna still not asking for rights to samples.
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Vog (profile), 2 Aug 2012 @ 8:56am

Where's the OMG, Pirate Mike guy? I actually want to see him try to twist this news into an insult to Mike.

I don't think he can.
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weneedhelp (profile), 2 Aug 2012 @ 9:03am

Re: Re: Copyright
And arguing with the wife.
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Baldaur Regis (profile), 2 Aug 2012 @ 9:08am

Re:
I recently read a monograph from an entertainment lawyer, written back when sampling licensing was just being sorted out. He argued that a sample manipulated to the point of being unrecognizable from the original was still the original, and that copyright protections still applied.

When I read it, I thought he was being a brilliant satirist, illustrating the absurdities of the studios' efforts to make money on the whole sampling process. Now, I think he was just a very forward-looking entertainment lawyer.

I'm going to wash my hands now, and drink gin until I forget this little toad.
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Rikuo (profile), 2 Aug 2012 @ 9:09am

Re:
Why?
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The eejit (profile), 2 Aug 2012 @ 9:21am

Re: Re: Re: Copyright
DUDE. You never argue with the wife - she'll tear you a new one and steal half your money for the next 20 years!
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Anonymous Coward, 2 Aug 2012 @ 9:27am

Different from the Electric Salsoul Orchestra version?
i sued to have the Electric Salsoul Orchestra version called Lovebreak - ooh i love it. Which is different from this one as well. Maybe he means that version??
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Anonymous Coward, 2 Aug 2012 @ 9:30am

FreeTard /s
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Anonymous Coward, 2 Aug 2012 @ 9:40am

Re:
How long before Richard Branson sues Madonna for infringing on his Virgin trademark?
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Jeffrey Nonken (profile), 2 Aug 2012 @ 9:46am

After listening to two bars of Chicago Bus Stop I thought, at first, it was a slow version of Outa Space.

www.youtube.com/watch?v=UuJVleNkJj0

It's not, but the similarities are striking. Too bad Mr. Preston isn't around to sue the socks off Salsoul.

Or maybe it's just as well. Don't really need more of this insanity.
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Anonymous Coward, 2 Aug 2012 @ 9:53am

Look for Richard Branson to come after " like a virgin".
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Brent (profile), 2 Aug 2012 @ 10:45am

so i was little when this song came out but was the version posted above allowed on TV? That mesh shirt thing is completely transparent (and hot). Also, totally forgot how hot Madonna was back then. Looks similar to Helena Bonham Carter, any one else think so?
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Ninja (profile), 2 Aug 2012 @ 11:20am

Re: Seems Simple Enough
I stopped reading after "and then hid them in Vogue."

Even if he's out for a cash grab there's a limit to stupid claims.

How the fck can you hide a sample inside a song? Maybe they scrambled the musical notes so VMG counted the number of each note and reached that conclusion?

No srsly. I'm gonna scroll down to check what the shills have to say, should be hilarious.
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Ninja (profile), 2 Aug 2012 @ 11:24am

Re: Re: Re: Copyright
Marriage is a relationship where one part is always right. The other part is the man.
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Ninja (profile), 2 Aug 2012 @ 11:25am

Re:
Sarcasm? If not then you fail.
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Ninja (profile), 2 Aug 2012 @ 11:27am

Re:
I'm anxiously waiting. Should be very amusing this one. It takes a trollish mind to twist this one lol
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DS, 2 Aug 2012 @ 11:40am

Re: Re: Re: Copyright
Marry a better wife.
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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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Gene Cavanaugh (profile), 2 Aug 2012 @ 2:09pm

Patent Reform
I personally like your suggestions (even as an IP attorney), even to the extent of getting rid of the system altogether. However, this does look like a step in the right direction.
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Richard (profile), 2 Aug 2012 @ 2:23pm

Re:
He doesn't have to - all he needs is a few non-sequiturs and a few ad homs and he's up and away!
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Anonymous Coward, 2 Aug 2012 @ 4:16pm

Re: Re: Copyright
And love.
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Anonymous Coward, 2 Aug 2012 @ 4:19pm

Re: Re: Re: Re: Copyright
Or go gay
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Anonymous Coward, 2 Aug 2012 @ 4:28pm

My favorite Madonna song is "Express Yourself". I mean, dig that chorus: "I'm beautiful in my way, 'cause God makes no mistakes. I'm on the right track, baby, I was born this way". Nobody will ever be accused of ripping that off!
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Anonymous Coward, 3 Aug 2012 @ 10:06am

So what he seems to be saying is that transformative use is just a way of 'hiding' the infringement...
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Wolf, 4 Aug 2012 @ 6:09am

Of course they could've missed. Who the fuck ever listens to Madonna? Certainly not real musiciams.
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Ric, 12 Nov 2013 @ 9:53am

Re: Re:
Dude do you realize what Richard Bronson on possession compared to what madonna has to which mostly are from stolen ideas?
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