A long-running legal dispute over alleged sampling on Madonna's "Vogue" now has producer Robert "Shep" Pettibone in court alleging that Warner Music is wrongfully withholding royalties from the 1990 hit.
Madonna and Pettibone were sued by VMG Salsoul, the owner of a 1976 song called "Love Break," for copyright infringement. Last June, the two prevailed when the 9th Circuit Court of Appeals upheld a decision that the taking of a short horn hit from "Love Break" for "Vogue" was de minimis copying. While Pettibone enjoyed the outcome, the appeals court did vacate the lower court's award of attorney fees. That meant more than $730,000 in reimbursement wiped out.
Who is responsible for that?
In a lawsuit filed Monday in New York, Pettibone now alleges Warner Music and Warner/Chappell "have admittedly withheld and failed to pay Pettibone royalties owed to Plaintiff for its defense of the VMG Salsoul lawsuit despite Plaintiff's demand that they pay these royalties to him, and despite giving them notice of breach."
Warner is said to be claiming that it is entitled to deduct royalties as part of an indemnification agreement between the parties, but Pettibone asserts the agreement doesn't allow for money to be retained after a claim is dismissed. He also says the indemnity clause doesn't cover a deductible under the errors-and-omissions policy, and regardless, "There has been no triggering of the indemnification clause because there has been no breach of the Agreement."
Pettibone, represented by attorney Richard Busch, is suing Warner for an alleged breach of contract and also looking for a declaratory judgment that no indemnification is required. The producer says that more than $500,000 is owed, perhaps a testament to the continued commercial success of "Vogue" as well as the high expense of litigation these days.
Here's the complaint.