Beasties vs. Flutist

Complex copyright law is becoming de riguer for those interested in the music biz. This ruling is great for samplers, less so for composers:

[James] Newton, a professor at California State University, Los Angeles, says that if he’d been asked, he never would have granted his permission. So in 2000 he sued the Beastie Boys, charging the group with copyright infringement. And, to his surprise and rage in June, he learned he’d lost the case.

In her ruling, U.S. District Court Judge Nora M. Manella said that Newton’s sequence was basically a “recording,” for which Newton and his publisher had already been compensated, as opposed to a “composition,” and that it was “unoriginal as a matter of law.” (She also denied a motion filed by the Beastie Boys seeking reimbursement from Newton for almost $500,000 in legal fees.) Newton is appealing the decision, and has taken to the Internet in search of support.

The case in the U.S. District Court for the Central District of California pits Newton, a critically acclaimed avant-garde jazz flutist and former Guggenheim fellow, against the Beastie Boys, a rap group known for both its innovation in sampling (the use of snippets of other artists’ recordings) and for its progressive politics.

Composers are nervously keeping an eye on the case, wondering what kind of precedent it will set if Manella’s ruling is upheld.

UPDATE

The following thoughts on the case are from a professional in the plagiarism/copyright review field:

Well, I don’t have the facts, so I can’t be sure. But I do have a couple of thoughts:

First, even if the work was in the Public Domain, Newton would have a right in copyright for his arrangement of the Public Domain work.

Second, the combined sound of the finished recording would identify with Newton, so he might have a claim under the doctrine of unfair competition.

Third, if the track was actually sampled and the record company contacted, in my opinion, that would provide irrefutable evidence of access. The fitting of the graphs of the waveforms one over the other in Pro Tools should establish the substantial similarity as required under the law.

Fourth, as to whether enough material was used, we are missing some information. Was the figure from the Newton work a figure that was repeated in his work? Did the figure used constitute a melodic/rhythmic “hook” in the Newton work? Often, there is a question about how much of a tune was used — but I have never heard of this being asked in a sampling case. My boss and I have worked on cases where there was a trademarked/copyrighted sound constituting three notes and the people were successfully sued for using a direct sample of the sound. Historically, the sampling cases come down to a question of whether or not a sample was used, and the answer is usually definitively provided by digital editing systems.

Fifth, there is the question of how much use of it was made, although this usually goes towards the extent of the damages. It can play towards the determination of whether the case is a full-on copyright case or whether it is a case of the infringer creating a derivative work. In this case, the infringer apparently made his entire song out of the sample…

There are several good instances I can think of off hand where the use of three notes is protected. The big one that comes to mind is the use of the first three notes from “Over There.” On one level, it is just three notes from a triad, but if you associate it with World War I you are in deep trouble…

One thought does come to mind: the SR copyright is often owned by the record company. They may have acted completely within their rights with regard to issuing the license for the sample. But that would not excuse the licensor from having to get Newton’s permission as well, if he actually has his own publishing and control over his material.

I agree with you Tom. Something is missing. Either Newton hasn’t communicated something, or he had an ass for an attorney, or he drew a complete ass for a judge. There’s no way of telling from our vantage point….