Recognizing that it was taking an unusual step, the Court of Appeals for the Ninth Circuit deliberatley broke from Sixth Circuit precedent in VMG Salsoul, LLC v. Madonna Louise Ciccone when it determined that the 0.23 second sample of horns which was copied from an earlier song titled “Love Break” was de minimis, and therefore, did not constitute copyright infringement.
The Sixth Circuit, in Bridgeport Music, Inc. v. Dimension Films, had previous held that Congress intentionally eliminated the de minimis exception to claims alleging infringement of a sound recording. The VMG Court, however, did not find that reasoning persuasive and, in fact, stated that the Sixth Circuit erred. This is not the first time that the Bridgeport decision has been questioned. Many District Courts have simply declined to apply the rule. Additionally, the notable copyright treatise penned by Nimmer “devotes many pages to explaining why the Sixth Circuit’s opinion is, in no uncertain terms, wrong.”