Striking a blow to composers’ rights, a U.S. District Court in California has denied jazz flutist James Newton’s digital sampling suit against the Beastie Boys. Judge Nora Manella denied Newton’s claim of copyright infringement, ruling that a six-second digital sample of his work used by the successful hip-hop trio was “unoriginal as a matter of law.” Newton has appealed this ruling to the Ninth Circuit Court of Appeals.
Back in May of 2000, Newton filed a claim against the Beastie Boys, Capitol Records, and a host of associates alleging that six-seconds of his multiphonic flute composition “Choir” (taken from the 1982 ECM album Axum) had been unlawfully sampled and looped over 40 times throughout the track “Pass the Mic” (link to video) off the Beastie Boys’ 1992 release Check Your Head. The master recording, owned by the recording label ECM, was officially licensed, but neither Capitol Records nor ECM contacted Newton to clear the usage with him. The argument at hand now is whether, outside of courtesy, anyone needed his permission.
Though “Choir” was registered with the U.S. Copyright Office and ASCAP in 1978, in her ruling Manella found that this six-second passage from Newton’s composition was not protectable in this instance. Newton explains that while the three notes of the composition result in a unique soundscape of shifting multiphonics, the judge found that because that element wasn’t written in the score, the three notes alone were not protectable.
Newton first discovered his unintentional appearance on the Beastie Boys’ album through a student at UC Irvine. “It was very shocking and surprising to know that they used the sample without giving me the right of choice,” Newton says, obviously annoyed at the situation. “And when I found out that the music was used on a Beavis and Butthead cartoon I was…I don’t know I can’t even put in words how upset I was.”
Working with attorney Alan Korn, Newton says he asked for “a respectable mechanical copyright rate” and was offered a figure that he found insulting. “At that point we decided we were going to have to take them to court. There wasn’t a good faith negotiation process occurring at all. In one of the statements that the lawyer made, he said I should be grateful that they used my sample.”
Though the Beastie Boys produced no sales information during the dispute, Check Your Head went double platinum and “Pass the Mic” was the first single off the record. Even after the suit was filed, the Beastie Boys continued to use the sample in live performance, remix recordings, and on their recent Criterion Collection DVD anthology.
The Beastie Boys have been sued for copyright infringements before, but in this case it has yet to be determined if they truly didn’t need the songwriter’s permission or if this was simply their intentional strategy to minimize expenses. Calls to the Beastie Boys Public Relations department for comment were not returned.
When Newton contacted ECM about this issue to ask why he hadn’t been consulted, he was told they didn’t have a correct address for him. “I’m very disappointed in them because they should have contacted me about the process and I just think that their handling of this goes against their reputation. I had a tendency to stay in residences for years and the slightest effort would have rectified that problem.”
For their part, ECM explains that it handles dozens of licensing issues every month and that they granted the Beastie Boys rights to the sample for a “modest fee.” According to a statement from their offices, “We licensed master synchronization rights for this fragment, granting rights as per our standard artist recording contract and stipulating that the source be properly credited on the Beastie Boys’ Check Your Head album – which it was.” Giving away their motivation for granting the rights, the statement also notes that “hopes that this reference might aid sales of Newton’s own disc proved unfounded.”
Countering any contention that the issue is one of money on his part, Newton clarifies that under no circumstances would he have allowed the license, even if he had been consulted and compensated. “I’m a Christian and with that name there’s no way I would have. That’s totally antithetical to my beliefs. For me it goes much deeper.”
Adding insult to injury, after the initial ruling in favor of the Beastie Boys, they filed a fee motion to recoup $0.5 million in attorney fees and costs wracked up by their 20-attorney team, some of whom were earning as much as $475 an hour. That motion has since been denied.
Newton’s own attorney, though pleased with the fee ruling, is still focused on Newton’s appeal. That decision is expected late-fall. For the layman unversed in the intricacies of copyright law, Korn illustrates the issue at hand with regard to this case. “This is the first time any court has ruled that you only need one license for sampling a recorded piece of music. Typically, it’s the other way around. Attorneys will say that if you’re going to sample something and you only want one license, record that song as a cover song in the studio and then sample yourself, but for that you have to license the composition. Here they did the opposite.”
The basis of the judge’s decision was that the musical work underlying the recording—when sampled in part as it was—is unoriginal. Korn found this to be “kind of a convoluted argument particularly because if you look at copyright law which says that a sound recording is derivative of a composition, which is true. A sound recording wouldn’t exist unless you had an underlying composition.”
Korn fears that the judge’s distinction here has possibly set composer rights on a slippery slope. If the decision stands, he also expects it to have the chilling effect the Beastie Boys might be hoping for, preventing others sampled without permission from following suit. “There’s a danger for composers if all of the sudden the standard for analyzing the originality of a piece of music is the notated version because you can’t rely on how the work sounds [captured on the recording] or any of the factors, the tone, volume, dynamics. Congress recognized that when they allowed you to submit a registration as a recording.”
For composers concerned with finding themselves in a similar situation, Newton advises anyone writing from a new music perspective, and especially those who use improvisation or extended techniques, to register everything with the Library of Congress, particularly the sound recording until the laws are more clearly defined. “We have a tendency not to register everything, or sometimes with just ASCAP or BMI. Maybe our finances are tight, but make sure that you go all the way.”
Though Newton’s piece was fully registered, he still finds himself embroiled in an ownership debate over his own work. Frustrated by the situation, he admits, “This is a business where it seems as high as art strives to get, the business gets lower and lower in an antithetical manner, almost in the opposite direction to where the art is trying to go.”