By James Stewart

Madonna is the center of attention again regarding alleged misappropriation (remember the “Express Yourself” debate?).  The “Material Girl” is once again en vogue on the copyright docket in the Ninth Circuit.  According to IPLaw360, record label VMG Saloul LLC has sued Madonna, her record label, and a co-composer (collectively, “Madonna”) with whom she worked to compose and produce the smash-hit “Vogue” for copyright infringement.

VMG alleges that Madonna covertly incorporated pieces of their late-seventies disco track “Love Break” into the infamous 1990 hit single “Vogue”.  In an attempt to bypass the Copyright Act’s statute of limitations, VMG argues that it was unable to detect such copying until new technology was developed in 2011.

Madonna quickly denied that any copying took place.  However, most interesting about the Material Girl’s motion is her observation that VMG’s “new technology” argument effectively wipes out any chances of success in this infringement suit.

VMG has the burden of showing that Madonna had access to the work (which they have argued vis a vis a complex chain of events about a former employment arrangement with Madonna’s co-composer), and that there is a substantial similarity between the two songs.  The Ninth Circuit, along with many other jurisdictions, adopts the “Ordinary Observer” test when assessing substantial similarity between a copyrighted and an allegedly infringing work.  This test asks whether an ordinary person, without trying to find minute differences between the works being compared, would overlook any differences and regard them as the same.  The focus in this inquiry is on the observer’s spontaneous reaction to the similarity between the works, not a skilled or expert-guided examination.  Therefore, the need for new technology to detect such an infringement extends far beyond the scope of the test.

Further, the Copyright Act tries to incentivize creativity and offers protection for original works of authorship.  While the Copyright Act does not define originality, courts have ruled that only a minimum degree of creativity is required to meet the originality standard for copyright protection.  In other words, so long as the work was independently created by the author(s),and not motivated in bad faith, this minimum degree is met.  Copyright only protects the author, or in this case, the composers’ artistic expression—not the underlying ideas.

 If an ordinary person would have to use a special technology, or require guidance on how to evaluate a work to prove two works are substantially similar, the success of the claim is unlikely.  Art is inspired by great creative works from all parts of history, inspiration is key and direct copying should be avoided at all costs.  Here, Madonna recognizes one of the major policy aims of the Copyright Act: it exists to protect original creativity, while allowing inspiration by other artists’ works and vice versa.

Do you think the ordinary observer test creates too low of a threshold?  Should a claimant be allowed to bring a late claim as a result of new technology?