Attorney's Fees Awarded To Madonna In Infringement Action

VMG Salsoul LLC v. Madonna Louise Ciccone et al., No. 2:12-cv-05967 (C.D. Cal. filed Apr. 28, 2014) [Doc. 148].

Madonna and other music-industry defendants were awarded their attorney's fees in a copyright infringement action in which the Court had dismissed plaintiff's claim, finding that the alleged infringement of the musical composition was not sufficiently original to be copyrightable and that any alleged sampling was de minimis.  Although the Court found that the fees and costs were unreasonable and unnecessary to the litigation, and therefore declined to award the full amount requested, the Court nonetheless awarded defendants $670.117.25 in attorneys’ fees and $50,055.00 in costs, pursuant to 17 U.S.C. 505.

Madonna's "Vogue" Does Not Infringe Horn-Hit

VMG Salsoul, LLC v. Madonna Louise Ciccone, et al., No. 12-cv-05967 (C.D. Cal. filed 11/18/2013) [Doc. 116].

Plaintiff alleges copyright infringement for the appropriation of a single horn stab (“Horn Hit”) from Plaintiff’s work, Love Break. The Horn Hit is a single chord that is played eleven times in Defendants’ work, Vogue. The Court found that neither the chord nor the Horn Hit sound sufficiently original to merit copyright protection. Even if the alleged appropriation was subject to copyright protection, the Court found that any copying was de minimis.  Accordingly, defendants were granted summary judgment.

The Court recognized that while a valid certificate of registration with the copyright office entitles Plaintiff to
a presumption of originality, Defendants may overcome this presumption by demonstrating that the Horn Hit is not original.  The Court then concluded that, as a matter of law, the Horn Hit is not sufficiently original to merit copyright protection.  "The Horn Hit is not a component of the 'hook' in Plaintiff’s Love Break nor is it accompanied by a lyric. As a result, the Court finds that this single chord is not sufficiently original to merit copyright protection".

The Court further found that even if the alleged appropriation was subject to copyright protection, Defendants’ use was de minimis.  "Having listened to the sound recordings of Chicago Bus Stop, Love Break, and Vogue, the Court finds that no reasonable audience would find the sampled portions qualitatively or quantitatively significant in relation to the infringing work, nor would they recognize the appropriation. The Court finds that any sampling of the Horn Hit was de minimis or trivial."  Lastly, there was also evidence of independent creation.

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.

Even Madonna Has the Landlord Blues

Madonna - yes, Madonna - is suing her New York City apartment cooperative, the building's management company, and a neighbor for breach of contract, breach of fiduciary duty, and injunctive relief. The equitable relief seeks transfer of shares of the cooperative, currently allocated to Madonna's neighbor (Apartment 7-A) to Madge.

As Madonna merely filed a summons with notice, details to follow. In the meantime, any one with info (neighbors?) feel free to drop OTCS a line. This is a juicy Central Park West (Manhattan's Upper West Side) story!

[Madonna Ciccone v. One West 64th Street Inc. and its directors and officers (as they may be elected or appointed from time to time and hold such office); Midboro Management Inc.; Ganfer & Shore LLP (as transfer agent, for relief purposes); Julie Clark Thayer (as an interested party who property interests are affected). Filed New York Supreme Court, N.Y. Co. 12/5/2007; 07-604002]

Wannabe...Our Distributor?

OTCS can't believe we missed this one:

Victoria's Secret, the women's lingerie retailer, will be the EXCLUSIVE DISTRIBUTOR of the Spice Girl's soon-to-be-released (Nov. 12) "Greatest Hits" compilation (EMI).

Not sure this is as ground-breaking as last week's Madonna/Live Nation deal, or the Radiohead In Rainbows name-your-own-price model, but an interesting example of a major label seeking revenue from alternative sources. However, OTCS questions how many men will walk into a Victoria's Secret just to buy the album? How will EMI promote this to customers (e.g., men) who do not regularly shop - for either apparel or music - in Victoria's Secret? Victoria's Secret clearly is not the same type of retailer as Starbucks, who draw in a much more diverse demographic of customers to purchase albums on their HearMusic label.

Also interesting, what cut is Victoria's Secret taking on album sales? Or maybe they get their cut on the up-coming Spice Girl's tour? Talk to me people...

Madge Moves On; Makes Money

My, oh my! Madge!

As the WSJ reports this morning, Madonna is leaving her record label, Warner Bros. Records, for...the concert promoter Live Nation? Yes, the very same Live Nation that clogs your in-box with Concert Updates, but that you don't unsubscribe from on the off-chance you can catch a gem, has now put on the record-label hat.

While I advocate challenges to the existing record-label model, I am curious how Live Nation will successfully be able to sell new Madonna albums. T-shirts - $25. Limited Edition Poster - $40. New Madonna CD - $50. Will people take the bait?

WSJ notes that:

It isn't clear when her first album for Live Nation would be delivered, nor is it clear how the promoter would distribute and promote the album, since the company has limited infrastructure to do so....People briefed on the deal speculated that Live Nation would enter a licensing arrangement with one or more traditional labels to release her albums.

No, it isn't clear.

Also, how much of a shock to the industry is this really? Madge is Madge, but how many other acts out there would (a) be able to afford lawyers to negotiate this kind of deal, (b) even be considered for this kind of deal, and/or (c) opt to venture into "virgin" territory? We all know that the real money for artists is in touring, and that big artists don't even really need labels if they have the built in fan-base. (Radiohead itself just released its new album exclusively on its website. See also Jeff Leeds, "In Radiohead Price Plan, Some See a Movement", New York Times (10/11/07 - Music) ("Radiohead is in a position that can’t easily be replicated — it completed its long-term recording contract with the music giant EMI while retaining a big audience of obsessive fans")).

But still - how plausible is this for the little...or even the medium...guy?

So mazel tov Madge, on a job well-done. But whether others will follow this Oregon Trail...I doubt it.