On June 2, 2016, in VMG Salsoul, LLC v. Ciccone, the US Court of Appeals for the Ninth Circuit held there was no actionable copyright infringement where a brief horn snippet was sampled in a song because any actual copying was de minimis ( (9th Cir. June 2, 2016)). Disagreeing with the US Court of Appeals for the Sixth Circuit, the court reasoned that Congress did not eliminate the de minimis exception in 17 U.S.C. § 114(b) for claims alleging infringement of a sound recording.

In the early 1980s, Shep Pettibone recorded the song Ooh I Love It (Love Break). In 1990, Madonna Louise Ciccone and Pettibone recorded and released the song Vogue. VMG Salsoul, LLC (VMG), the owner of the copyright in Love Break, alleged that when recording Vogue, Pettibone sampled a 0.23-second horn segment from Love Break and used a modified version of that snippet in Vogue. VMG claimed that such use separately infringed its copyrights in the:

On appeal, the Ninth Circuit noted that though it was settled Ninth Circuit law that the de minimis exception applies to claims of infringement of a copyrighted composition, the court had not yet established whether the exception applies to the practice of sampling and claims of infringement of a sound recording copyright. The court explained that, under the de minimis exception, an unauthorized use of a copyrighted work must be significant enough to constitute infringement.

Since VMG alleged both types of infringement, the Ninth Circuit considered:

In declining to follow the Sixth Circuit, the only circuit court to previously address the issue, the Ninth Circuit held that Congress did not eliminate the de minimis exception in 17 U.S.C. § 114(b) for claims alleging infringement of a sound recording. The Sixth Circuit had reasoned in Bridgeport Music, Inc. v. Dimension Films, (410 F.3d 792 (6th Cir. 2005)), that:

However, the Ninth Circuit's analysis of the statutory text and legislative history found that the statute was intended as a limitation on copyright holders' rights in a sound recording, and did not implicitly expand their rights by eliminating the de minimis exception.

The Ninth Circuit also agreed with the district court that any copying from Love Break was de mimimis and not an infringement of either the copyrighted composition or the sound recording. The court explained that a general audience would not recognize the less-than-a-second snippets used in Vogue as originating from Love Break.

Finally, on the issue of attorneys' fees, the Ninth Circuit: