Intellectual Property, POOF!, Celebrities: Ninth Circuit Affirms Summary Judgment In Favor Of Madonna, Producer Of The Song “Vogue,” And Others Based on De Minimis Copyright “Copying”

 

However, Attorney’s Fees Award For The Material Girl And Other Defendants Reversed Because Plaintiff’s Theory Was Not Objectively Unreasonable.

  Source:  Wikipedia, Article “Madonna.”  Author: Olavtenbroek.   Creative Commons Attribution-Share Alike 3.0 Unported license.

    Well, VMG Salsoul, LLC v. Madonna Ciccone, Nos. 13-57104/14-55837 (9th Cir. June 2, 2016) (published) does involve the “Material Girl” Madonna, the producer of her song “Vogue,” and others who were accused of copyright infringement in the form of using a .23-second horn segment from a previous song known as “Love Break.”  The district court granted summary judgment to the defendants based on the conclusion that the copying was de minimis such that it did not constitute copyright infringement based on treatise commentary and district court decisions—even though the Sixth Circuit had come to an opposite conclusion (namely, there is no such this as de minimis copying for infringement purposes).   The district court also awarded attorney’s fees to the defense under the copyright fee-shifting statute, 17 U.S.C. § 505.  [For purposes of section 505,  “[A]ttorney’s fees are to be awarded to prevailing parties only as a matter of the court’s discretion.” Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994). “In deciding whether to award fees under the Copyright Act, the district court should consider, among other things: the degree of success obtained on the claim; frivolousness; motivation; objective reasonableness of factual and legal arguments; and need for compensation and deterrence.” Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 (9th Cir. 1996).]

    The Ninth Circuit, in a 2-1 opinion, affirmed the summary judgment, but all judges agreed the fee award had to be vacated.  Given that the Sixth Circuit was the only circuit court decision on the issue and that this circuit had endorsed plaintiff’s theory of infringement, the suit could not be held to be objectively unreasonable in nature—even if the Ninth Circuit departed from its sister appellate court’s conclusion.  So, the fee award went POOF! on appeal.