In the Ninth Circuit, a de minimis defense is available to a claim of sound recording copyright infringement through sampling. A 0.23-second horn sting, transformed in the mix and inaudible to a reasonable listener as coming from the original recording, is not actionable infringement. That is the holding of VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016).
The case directly contradicts Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005). Bridgeport holds that any digital sample of a sound recording, however brief, requires a license. VMG Salsoul holds that de minimis sampling of a sound recording is not actionable. The two circuits cannot both be right. As of 2026, the Supreme Court has not resolved the split.
The sample at issue
The plaintiff’s recording was “Love Break” by Salsoul Orchestra. The defendants’ recording was “Vogue” by Madonna. The alleged sample was a 0.23-second horn sting — a brief percussive brass figure — that the plaintiff claimed Madonna’s producers had lifted from “Love Break” and incorporated into “Vogue.” The sample was short, it was mixed into a complex production, and expert testimony established that a reasonable listener would not identify it as coming from the original recording.
The de minimis analysis
The Ninth Circuit applied the de minimis doctrine that operates across copyright law generally: a taking so small that it falls below the threshold of legal significance is not actionable, even if technically a copy. The court held that this doctrine applies to sound recording copyright claims, contrary to the Sixth Circuit’s position.
The court’s reasoning: the de minimis doctrine is a general principle of copyright law. Nothing in 17 U.S.C. § 114, the sound recording provision, explicitly excludes it. Bridgeport had read the statute to require a license for any reproduction, but the VMG Salsoul court found that reading too absolute. The question is whether the copying was de minimis — whether the amount taken was so small and the transformation so significant that a reasonable listener would not perceive it as a copy of the original.
What de minimis requires in practice
The VMG Salsoul standard has two components: quantity and qualitative impact. A very short sample (here, 0.23 seconds) addresses the quantity question. The further requirement is that the sample not be recognizable to a reasonable listener as coming from the original recording. If the sample is brief enough that its source is inaudible in the final mix, the de minimis threshold is met.
This does not mean that any short sample is automatically free in the Ninth Circuit. A two-second iconic guitar riff, even if briefly used, might be immediately recognizable as coming from the original recording. The recognizability test matters. The sonic transformation matters. The question is not just duration but listener perception.
What this means for sampling practice
For producers and artists whose work will be distributed primarily in the Ninth Circuit: the VMG Salsoul rule provides some room for very brief, heavily transformed samples that a reasonable listener cannot identify as coming from the original. That room does not exist in the Sixth Circuit under Bridgeport.
For rights holders: a short sample that is unrecognizable in context may not be actionable in California. If the rights holder wants to pursue it, the choice of forum matters. Bringing the claim in a Sixth Circuit jurisdiction, if proper venue exists, subjects the defendant to the Bridgeport rule instead.
The deeper point: the circuit split means that the law of sampling in the United States is genuinely unsettled at the most basic level. A production practice that is legal in California may be infringing in Tennessee. Until the Supreme Court resolves Bridgeport versus VMG Salsoul, there is no nationally uniform rule on de minimis sampling of sound recordings.
The musical analysis is mine. Legal advice is your attorney’s.