Even deliberate copying of a copyrighted work does not constitute actionable infringement if the copying is only de minimis.  This decision extends that rule, adopted in Newton v. Diamond (9th Cir. 2004) 388 F.3d 1189, 1192 with respect to sheet music, to copying of copyrighted sound performances, finding the 6th Circuit’s contrary decision in Bridgeport Music, Inc. v. Dimension Films (6th Cir. 2005) 410 F.3d 792 unconvincing.  Here, Madonna’s use of a 0.23 second segment of an earlier copyrighted song was de minimis and therefore not infringement since an average audience would not recognize the appropriation.

Ninth Circuit Court of Appeals (Graber, J.; Silverman, J., dissenting); June 2, 2016; 2016 WL 3090780