Jamie Kelly Jun. 16, 2016, 10:45am

PASADENA – A copyright lawyer said the judges in the 9th Circuit Court of Appeals may have been right when they decided earlier this month that an average audience wouldn’t recognize a sample that was used in the Madonna hit "Vogue," but he isn’t sure they reached that decision in the right way.

“I don't think that most judges, except with really good expert reports that agree with each other, are in a position to say that which the 9th Circuit said, that the average audience would not recognize the appropriation of the notes or of the music,” Ira Sacks, an attorney with Akerman LLP told the Northern California Record. “Although they might be right, they are not the average audience.”

In a 2-1 decision, the court ruled that while "Vogue" may have used a sample from the 1980s song "Love Break," its use was so fleeting and so different from the original that an average listener wouldn’t realize where the sample came from, meaning it falls under the so-called “de minimis” exception in copyright law. But, Sacks said, the judges aren’t an average audience, and since the opinion written by Justice Susan Graber doesn’t mention any expert reports about what audiences would recognize, he worries about the implications of the judges reaching the decision simply by listening.

“It's very hard to say what people in hip-hop or rap music in general or a particular portion of hip-hop or rap music recognize or don't recognize in a particular riff,” Sacks said. “It's really hard for someone to say that. [The judges] say they listened to this and that no reasonable jury would recognize the appropriation of the notes or the music, but I don't know how these three judges could know what an average audience would say.

"They didn't say that they had expert declarations or affidavits that persuaded them, they said they listened. And I think that's dangerous with this type of sampling. I don't think that three judges or nine judges or 11 judges, by themselves, would know what an average audience would or would not recognize as an appropriation.”

The 9th Circuit upheld a lower court’s summary judgment that the use of the horn hits in "Vogue" didn’t constitute copyright infringement, a decision that puts the court at odds with the 6th Circuit, which ruled in 2005 that any sampling or copying without a license was infringement. The fact that two circuits reached such different decisions points to the need for a resolution, Sacks said.

“I think the only likely way this gets resolved is for the two circuits to be harmonized,” he said. “Could that happen short of a Supreme Court decision? Sure. The 9th Circuit could take up the 'Vogue' case en banc and agree with the 6th Circuit, or the 6th Circuit could have a similar case that comes before them en banc and agrees with the 9th Circuit.

"Those are possible, but I think that the best way to reconcile these, the clearest way, if you get a clear decision, is for the Supreme Court ultimately to take (certiorari) and decide what the law is in this area.“

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9th Circuit Appellate Court, San Francisco
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