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The lengthy legal quarrel between Madonna’s producer, Robert “Shep” Pettibone, and Warner Music for the 1990 pop hit “Vogue,” is now turning to an examination of alleged wrongful withholding of royalties. Representing attorney Richard Busch is suing Warner for breach of contract and declaratory judgment that no indemnification is required.

Last June, Madonna and Pettibone prevailed in a lawsuit filed against them by VMG Salsoul, the owner of the song “Love Break,” over copyright infringement. The 9th Circuit Court of Appeals held that taking a short horn hit form “Love Break” for “Vogue” was de minimis copying. Even though Pettibone won, the court did remove the lower court’s award of attorney fees, thus, over $730K I reimbursement were removed.

Pettibone has now filed a  lawsuit in New York, alleging Warner Music and Warner/Chappel “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 of the position that they arauthorized to deduct royalties when it comes to these issues since the parties have an indemnification agreement. Pettibone on the other hand, doesn’t agree and is of the belief that the agreement does not allow money to be held after a claim are dismissed.  This is based on the idea that the clause should not 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 alleges that more than $500,000 is owed and possibly more since the commercial use of “Vogue” is continuing.

Credit: Jessica Wong


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