Vogue Sample Suit Against Madonna Survives Dismissal

VMG Salsoul LLC v. Ciccone, No. 2:12-cv-5967 (C.D. Cal. filed 1/29/13) [Doc. 29].

Defendant's motion to dismiss under Rule 12(b)(6) -- on the basis of de minimis copying and statute of limitations -- denied.

The factual allegations are: Plaintiff owns the composition and sound recording copyrights of "Love Break", released in or about 1977.  Defendants Madonna and Pettibone are “credited with creating the
sound recording” of the song “Vogue,” a “tremendously” successful single that has been on several “top
ten” lists of the best dance songs of the 1990s and was performed by Madonna at the Super Bowl halftime
show on February 5, 2012.  Plaintiff alleges that Defendant “sampled” “numerous but intentionally hidden” portions of Love Break into Vogue—specifically, that the horn and strings in Vogue are “intentionally sampled from Love Break throughout.”  It further alleges that the sampled portions of Love Break were “intentionally hidden” throughout Vogue, “so as to avoid detection.”

In addressing the Defendants' argument that any copying was de minimis, the Court found that such argument was better suited for summary judgment and should not be decided on a motion to dismiss.  Similarly, on the statute of limitations argument, the Court found that evidence was required to determine whether the plaintiff was unaware of the infringement, and that lack of knowledge was reasonable under the circumstances.