Beasties v James Newton
Fatback
6,746 Posts
Beastie Boys can Pass my Dick.
So I just heard on NPR that the Supreme Court threw out the James Newton appeal to the CA court ruling. Re: Pass the Mic sample. Basically improvisations on record do not count as publishable/copyrighted materials. Seems kind of Eurocentric? No surprise I guess.
I remember the CA judge saying that anybody could have made those flute sounds.
PS???I wonder what amount Newton was asking?
So I just heard on NPR that the Supreme Court threw out the James Newton appeal to the CA court ruling. Re: Pass the Mic sample. Basically improvisations on record do not count as publishable/copyrighted materials. Seems kind of Eurocentric? No surprise I guess.
I remember the CA judge saying that anybody could have made those flute sounds.
PS???I wonder what amount Newton was asking?
Comments
Without comment, justices let stand a lower court ruling against jazz artist James W. Newton. Newton contended that the rappers' Pass the Mic included a sample from his musical composition Choir without his full permission.
The Beastie Boys paid a licensing fee for the six-second, three-note segment of Newton's work, but failed to pay an additional fee to license the underlying composition.
The San Francisco-based 9th U.S. Circuit Court of Appeals agreed to dismiss Newton's lawsuit alleging copyright infringement. The appeals court reasoned that the short segment in Pass the Mic was not distinctive enough to be considered Newton's work.
Several members and representatives of the jazz and independent artists community ??? including the American Composers Forum, the Electronic Music Foundation and Meet the Composer ??? had filed a joint friend-of-the-court brief in support of Newton.
They urged the Supreme Court to clarify the scope of copyright law, given the growing practice of digital sampling, or recording a portion of a previously existing song, they say increasingly infringes on their ownership rights.
The case is Newton v. Diamond, 04-1219.
that's what's so fucked up about this. The Beasties admit to using it and then go on to say that it is not a real composition.
i think this is a very important issue for makers of instrument and/or sample based music.
surely overshadowed by MJ at the moment.
What the court said, Frank, is that the notes themselves were not Newton's property, ie, it wasn't the first time in the world that someone had played them together. He couldn't lay claim to three notes as "his composition".
Again, they paid for the use of the sound recording itself.
I don't see anything wrong with this.
Here's what MCA (the Beastie Boy, not the label) wrote when this lawsuit was first filed:
I'm sure there are plenty of lawyer-types here who will correct me if I'm wrong, but the way it's done in film- and TV-land is that in order to use a song, you have to license the use, that is, get the OK from whomever owns the recording as a whole. Then you have to clear the composition as a piece of music someone has composed as well as arranged (this can be a totally different person than the one who composed it) and if there are vocals, the person who wrote the words. Then there is the publisher and these days, it is rare that there is only one of those. I have had to talk to seven different groups of people to clear one song - file under "Not Fun".
In the case of the Beasties, the way I'm understanding it is that they have cleared the use of the piece as it is something that "belongs" to someone else, but the judge is saying that as a composition, it is not recognizable enough for the composer to lay claim to it.
I seem to rememeber reading a quote from Newton where he claimed that those "three notes" actually contained more than just three notes. Supposedly there were unique harmonics involved that differentiated them. I'm not saying I believe what he says, but I think this case is very interesting and a lot less cut and dry than a lot of people are stating.
You're right, the first note contains a harmonic. Harmonics are not the intellectual property of James Newton.
This is, actually cut and dried, in that Newton is fighting for a position that is pretty indefensible...
Axum is the benchmark recording for solo flute. After some of Dolphy's excursions, these are the most important recordings for "jazz" flute. Period.
I honestly think the Beasties, God bless them, did not know what they were fucking with. It was just another cool record by some black dude.
A hell of a lot more than three statley, plump notes! Hell of a lot more.
Maybe in the courts, but I can also see his side of the argument. I'm not saying I agree with it, just that I can understand why he's fighting for it.
Because he wants to get paid?
Fatback - do you even recognize what the repercussions would be if Newton won? I could sue you over playing any series of notes that I had played previously.
Next thing you know you'll be able to copyright entire chords.
It's not really something I'm interested in getting into an argument about, because my knowledge on both copyright laws and the music that Newton makes is extremely limited, however, I think the line between "three notes" and a unique composition is not necessarily drawn in this case. Yes, it's ridiculous to assume that three basic notes can by copyrighted, and as you say, harmonics can't be copyrighted either. But when such things are combined in a dinstictive order I think an argument can begin to be made that they are the unique vision of the artist. Again, I don't think he should have won, because as you said, the legal repurcussions could get out of hand. Still, I don't fully agree with the "it's just three notes which doesn't constitute a composition" argument.
You mean something I played once and recorded? Or if you used the actual recording?
I believe you can patent a technique.
So RR Kirk could have copyrighted circular breathing?
I wonder.
Faux?
The court's decision says exactly that, that it's not a distinctive order.
Further to the point, it's not the main refrain nor an identifiable part of the song by the sheet music.
Fatback - when did this record come out? Surely people had blown harmonics on a flute before that...
You got the wrong lawyer.
But you can already sue somebody for using your actual recording; the Beastie Boys thought they had insulated themselves from that form of liability by paying dude for the use of the recording.
This lawsuit was solely about the use of the "composition".
And also--probably--about greed and opportunism.
I don't think there's any argument there.
I think that's pretty offensive. Kinda surprised to hear from FR.
Right, but the argument is that the technique used to achieve the harmonics was not Newton's to claim.
Can you establish that no one had ever played the flute that way previously?
Look, man, as much as I personally dislike the Beastie Boys, I have to side with them on this because:
1) A deal is a deal
2) A decision for Newton would have been legally untenable and would have resulted in a flood of absurd litigation
Right. Like reparations for slavery.
I'm just offended that you find his (JN's) actions opportunistic and greedy. I find the B Boys defense bourgeois and smarmy.
Jesus, just because a case might turn over status quo, let's stop it. Fuck?
Them damn activist judges again.
Frank you should really be ashamed throwing around Thurgood Marshall's image in a context like this.
When you're ready to start talking sense and stop doing silly childish sh!t like equating the struggle for reparations with an individual musician's struggle to get additional money for a sample that he or his assignees have already been paid for, I will consider arguing with you.
And, for the record, I suspect Newton himself is just a naive person who fell under the sway of an opportunistic plaintiff's attorney--I see it every day.
I completely disagree with everything you just said.
And fuck, your 2) point is that this would "result in a flood of absurd litigation." Plaese.
Newton's solo flute pieces are as important as some of Chs. Parker's solos on Dial 78s. For the Yeastie Boys to ignorantly run it for a frat-hop anthem and only pay ECM (um, Warner Bros) is sad. Why do musician's publish their music?
James (or his label) accepted money and allowed use of a small sample. Now they're spliting hairs and suing for more money. An ethical person would have brought up the issue at the time the Beastie Boys requested use of the sample. Not ten years later.
Really, if you allowed someone use of some of your music would you feel right suing them 10 years later because you discovered some technicality that allowed you to get more cash? I would feel like a smileball.
To follow that logic, why do musicians sign to major labels? It's not like the Beasties arbitrarily decided to pay Warner. Warner owns the recording. Newton has no claim to the actual composition of those three notes (with harmonics). There are a finite amount of notes and combinations of those notes in the universe, and one musician can't lay claim to a series of those notes unless it constitutes an identifiable melody that forms the substance of the overall composition. I don't think you have a good understanding of intellectual property law in this instance....
For the record, Newton had already licenced ECM the rights to the recording, so the sample fees were paid to ECM without Newton's knowledge.