For the past 10 years, the Sixth Circuit Court of Appeals has stood alone in having addressed the issue of whether a de minimis amount of copying used in a song sample constitutes infringement of a copyrighted sound recording. While the Sixth Circuit’s admonition of “get a license or do not sample” has gained little traction in the district courts outside of the Sixth Circuit, neither did its sister circuit courts take the contrary position – until now.

On June 2, 2016, the Ninth Circuit held in VMG Salsoul, LLC v. Ciccone that a 0.23-second “horn hit” sampled from the song “Love Break” for use in Madonna’s song “Vogue” did not infringe the copyright in either the sound recording or the musical composition of the sampled song. Affirming the district court, the Ninth Circuit held that the de minimis exception to copyright infringement “applies to infringement actions concerning copyrighted sound recordings, just as it applies to all other copyright infringement actions.”