May 08, 2013 9:37am PT by Eriq Gardner
Lawsuit Over Madonna's 'Vogue' Features Romantic Twist
Thanks to new technology, it has become much easier to figure out the source of samples in songs. The tracing technology holds legal ramifications: Now that copyright owners of sound recordings can point to better evidence of their work being used without license, they stand a better shot of proving an infringement. What isn't clear is whether a sample so artfully hidden as to be undetectable without advanced technology is used substantially enough to trigger any liability.
One thing technology will never change is relationships in the music production business.
Witness a lawsuit over Madonna's 1990 international hit, "Vogue," which according to a lawsuit filed last year, incorporates a horn sound from a decades-old composition called "Love Break." The litigation has just taken an incredible turn with one of the defendants -- "Vogue" producer Robert "Shep" Pettibone --- saying he co-authored the plaintiff's song and further alleging that the plaintiffs worked on the defendants' song. And, in the middle of this, there's said to be a romantic relationship that factors into both the creation of and subsequent lawsuit over one of Madonna's most famous works.
VMG Salsoul is the plaintiff in the case initiated in July 2012 against Madonna, Pettibone, WB Music and others. The company has asserted ownership over "Love Break," which it says was written by Vincent Montana around 1975. The company says in its lawsuit that the sampling of its song could only become "confirmed" once technology was made available to it in 2011.
In advance of a possible jury trial next month, the defendants are looking to kill the lawsuit with a motion made on Monday for summary judgment. According to the defendants' court papers, VMG Salsoul is owned by the Verse Music Group whose chief executive is Curt Frasca and whose senior vice president of production is Tony Shimkin.
Pettibone now says that what Montana actually composed in the mid-70's was a song for Salsoul called "Chicago Bus Stop (Ooh I Love It)," and that in 1982, Salsoul's owner asked him, Pettibone, to use it as inspiration to create a new composition and sound recording. Pettibone states that "Love Break" was the result of this request, and that even though he's only credited with "remixing" and "additional production" on "Love Break," that because there was no written agreement providing that Pettibone made the song as a work-for-hire, that "as a matter of law Pettibone owns (or at least co-owns) the copyright in the 'Love Break' recording."
In short, Pettibone claims that the plaintiff's song is his own. But wait, it gets even better...
In 1989, Craig Kostich, the head of dance music at Warner Brothers Records, is said to have asked Pettibone to create a song for Madonna. Pettibone worked with others to make "Vogue," but disputes that the song incorporates a horn stab from "Love Break." Instead, "Vogue" allegedly created the horn sound using a device called a “proteus emulator.”
"Vogue" also was released as a 12-inch record with three club remixes, which Pettibone says were credited to him, Fresca and Shimkin. Yes, two of the individuals who are said to be running the plaintiff's company.
"Pettibone, Shimkin and Frasca were more than just co-workers," says the motion for summary judgment. "Shimkin lived with Pettibone rent free in New York City for almost five years and engaged in a romantic relationship with Pettibone that Pettibone ultimately ended."
The motion continues, "Frasca and Shimkin worked for Pettibone for many years and the three of them vacationed together in the Caribbean and enjoyed frequent getaways to Pettibone’s home in the Poconos; and both Shimkin and Frasca credit Pettibone for helping them establish their music production careers."
Pettibone says that Frasca hired Shimkin 11 months before filing the lawsuit.
The defendants give several reasons why a judge should throw out the case: One is that VMG Salsoul doesn't possess a copyright registration on "Love Break." Another is that song lacks originality and if there's any copying, it's de minimis.
But the lawsuit is now being attacked on other grounds including that Pettibone as an alleged co-author of "Love Break" can't be sued for infringing his own work. Also, the plaintiff is allegedly barred from bringing a lawsuit over "Vogue" because Shimkin and Frasca have "unclean hands."
According to the motion, "To the extent there is any infringement, they are co-infringers."
Here is the full motion filed by attorney Paul Duvall, which represents just one side of the story of the creation of Madonna's "Vogue." Besides Madonna, Pettibone has worked with George Michaels and The Pet Shop Boys and is credited as being influential in the development of '80s dance-pop music scene.
We've also reached out to Shimkin and Frasca and will update with anything they say. Frasca has worked with Prince, Janet Jackson, Avril Lavigne and others. VMG Salsoul is represented by attorney Robert Besser.
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