Beasties v James Newton

Fatback · June 2005

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?

bassie · June 2005

Washington ??? The Supreme Court on Monday declined to consider whether a 1992 Beastie Boys song infringed on the copyright of a jazz flutist's recording.

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.

Fatback · June 2005

Washington ??? The Supreme Court on Monday declined to consider whether a 1992 Beastie Boys song infringed on the copyright of a jazz flutist's recording.

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.

DjArcadian · June 2005

I don't get it. If they cleared the sample what exactly were they sued for? Little dudes want to know...

Fatback · June 2005

little dudes need to read threads. it's here.

Jonny_Paycheck · June 2005

No, what they were paying for was the sound recording, what Newton wanted was the use of his "composition" which consisted of three notes. "buuuuuuhhhhhhhh.... bwee dooo"

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.

DJ_Enki · June 2005

I don't get it. If they cleared the sample what exactly were they sued for? Little dudes want to know...

Here's what MCA (the Beastie Boy, not the label) wrote when this lawsuit was first filed:

For the last year, we???ve been involved in a difficult legal battle with James Newton, a jazz musician and composer whose work was included as one of several samples in our song ???Pass the Mic.??? We can only guess that Mr. Newton has gotten some very bad legal advice. He has refused generous settlement offers, instead mounting a very aggressive case against us for copyright infringement, which has cost us nearly $500,000 in legal fees.

Having lost this case on every count, Newton has now launched a defamatory email and press campaign, which most recently resulted in an article in the Washington Post.

This has been frustrating for us because we have no interest in taking advantage of anyone - least of all other musicians - and we made sure we had cleared the sample in question some 10 years ago. The sample is a flute sound - six seconds from Newton???s song ???Choir" - which runs through the background of ???Pass the Mic??? buried under our own live instrumentation as well as many other samples.

When we originally wanted to use the sample in 1992, we contacted ECM Records, the label that Newton gave permission to license the sound recording of ???Choir,??? and cleared the sound recording with them. But we decided not to clear the composition.

Two things come into question when one is clearing a sample: the composition, and the sound recording. It is very important to understand the distinction between these two things in order to understand this case. A composition is a combination of words and musical notes, generally presented as sheet music. The copyright of the recording on the other hand, has to do with the uniqueness of the performance on that particular recording. The system exists because often songwriting and performing are two different lines of work.

An analogy to better explain the difference is this: One person writes a book. Another person records a reading of it to be sold as an audiotape. Now, if you sample a small excerpt of the tape, a part where the voice says ???as well as??? you might need to clear the sound recording related to the persons voice. But you would not need to contact the author of the book to ask him if you can use the words ???as well as.???

In this case it may seem confusing because Mr. Newton is both the composer and the performer of the piece of music that was sampled. And this confusion is exactly what his case is built on. He and his legal team are attempting to blur the line between composition and recording. This blurring is not helpful to composers or performers. The reason that recordings and compositions are two distinct things is to protect both songwriters and performers.

We cleared the recording but did not clear the composition because what we used is three notes and three notes do not constitute a composition. If one could copyright the basic building blocks of music or grammar then there would be no room for making new compositions or books. The ruling in the case will not have a ???chilling effect??? as was erroneously stated in the Washington Post. These laws exist to protect composers, not hurt them.

If the Court had ruled that Newton has exclusive ownership of the series of notes, C/D flat/C, no one could write new music. And needless to mention there are many compositions predating ???Choir??? that use this same sequence of three notes.

As an aside, we slowed the sample down which changed the notes in question. So the notes that are in our song are not even the notes that are in Newton???s recording or composition. This could be compared to paraphrasing.

Newton is now appealing his case to a higher court to try to get the decision overturned. If he succeeds in his efforts it will be a huge blow to forms of music that involve not only sampling, but all musical quotation. Jazz, hip hop and many other forms of contemporary music would be seriously affected by such a decision. Another likely consequence of the judge siding with Newton would be that it would empower and encourage more frivolous lawsuits. But it is doubtful that any court will side with him. To be frank, this case has already gotten a great deal more publicity than it warrants because the claims that are being made don???t really make any sense.

Mr. Newton???s lawyers have even gone so far as to argue that we have taken the central theme of Mr. Newton???s song ???Choir??? and made it the central theme of our song. If you listen to his song it seems clear that the part that we sampled is not the central theme. The notes in question, C/D flat/C, never happen again in his composition. In fact, if you look at the sheet music that Mr. Newton submitted when he copyrighted his song, the sound that we sampled is not even represented in his score.

And in terms of what that sound represents in our song, we used it as a drone in the background. It has nothing to do with the central theme of our song. We could replace the flute drone with some other droning sound, or even remove it altogether and it would make no difference to our overall composition. Apart from the first time that the flute sound plays, it is so low in the mix that it is difficult to even hear it.

Newton???s ???Choir??? is 4 min 30 sec long, and as far as we know is an original composition when viewed as a whole. What the judge found is that the three notes of Newton???s recording which we sampled do not on their own constitute an original composition. She said however that what is unique is the specific performance of the three notes that we sampled, and that is precisely the thing that we licensed.

Newton gave his label - ECM - permission to license his work, and they in turn gave permission to us. If Mr. Newton feels this strongly about his sounds being used, he should not have made a contract with his label that enables them to license out his work.

Before spending a lot of money on the case we contacted Mr. Newton and offered him a generous out of court settlement in hopes of avoiding further legal fees. He responded by telling us that the offer was ???insulting??? and said that he wanted ???millions??? of dollars. In addition he told us that he wanted 50% ownership and control of our song, ???Pass the Mic.??? But because Mr. Newton???s flute sound is just one of hundreds of sounds in our song giving him 50% ownership of our song seemed unfair. That kind of split is sometimes done if one party writes all of the music and the other writes all of the lyrics. Newton by no stretch of the imagination wrote all of the music in ???Pass the Mic.???

We would suggest that any curious person listen to ???Pass the Mic??? and ???Choir,??? and see if they think Newton deserves 50% of the songwriting.

The article in the Washington Post compared our sample to a song Biz Markie made. It is unfair to compare the Newton case with the Biz Markie case. Biz Markie???s song involved use of the a large portion of the ???Alone Again??? song including the chorus, not three notes.

As to Mr. Newton???s claims regarding our countersuing him, our lawyers, at the request of the lawyers for the other defendants, as required by our contracts, made a motion to be reimbursed for our legal fees. This is standard procedure for the winner of the case as contained in the copyright laws. Mr. Newton???s lawyers have told us that if they ever win they intend to do the same. In any case, the court did not award any fees. So Mr. Newton is in absolutely no danger of losing his home and life savings.

Furthermore, it is our opinion that Mr. Newton???s lawyers should be responsible for covering our legal fees, not Mr. Newton himself. If the judge had granted our motion they, and not Mr. Newton woul d have paid. In the UK when people are unjustly sued the claimant???s lawyers are usually responsible for the defendant???s legal fees. We wish that were the case in the US as well, because people would think more carefully before throwing such frivolous lawsuits around.

Sincerely,

Beastie Boys

bassie · June 2005

I don't get it. If they cleared the sample what exactly were they sued for? Little dudes want to know...

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.

twoply · June 2005

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".

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.

Jonny_Paycheck · June 2005

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".

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...

Fatback · June 2005

I think this case is very interesting and a lot less cut and dry than a lot of people are stating.

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.

twoply · June 2005

This is, actually cut and dried, in that Newton is fighting for a position that is pretty indefensible...

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.

Jonny_Paycheck · June 2005

This is, actually cut and dried, in that Newton is fighting for a position that is pretty indefensible...

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.

pacman · June 2005

This is, actually cut and dried, in that Newton is fighting for a position that is pretty indefensible...

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.

guy_alcindor · June 2005

I think we could argue for days what exactly constitutes a composer's property - it's fairly abstract when you're talking about droning notes. This was no melody being stolen here, and as such, Newton is unjustly going after way too much. If what the Beasties said is true, that he wanted 50% of "Pass the Mic", I wouldn't shed a tear if he lost his home. And millions? Jesus christ, this guy is no Michael Jackson, ferrchrissakes. I wonder if Primo (or Biggie's label) paid even close to that for sampling our favourite ped on "Unbelievable". California obviously is not affording this guy any tart spirituality. I'm sure Newton is now realizing how foolish he was not to take the 100 grand are whatever the intitial settlement proposal was...

twoply · June 2005

This is, actually cut and dried, in that Newton is fighting for a position that is pretty indefensible...

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.

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.

Fatback · June 2005

This is, actually cut and dried, in that Newton is fighting for a position that is pretty indefensible...

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.

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?

Jonny_Paycheck · June 2005

This is, actually cut and dried, in that Newton is fighting for a position that is pretty indefensible...

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.

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.

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...

faux_rillz · June 2005

This is, actually cut and dried, in that Newton is fighting for a position that is pretty indefensible...

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.

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?

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.

Fatback · June 2005

1982. I don't know of a more important solo flute recording.

twoply · June 2005

And also--probably--about greed and opportunism.

I don't think there's any argument there.

Fatback · June 2005

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.

Jonny_Paycheck · June 2005

1982. I don't know of a more important solo flute recording.

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?

faux_rillz · June 2005

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.

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

Fatback · June 2005

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.

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.

Fatback · June 2005

"buuuuuuhhhhhhhh.... bwee dooo"

faux_rillz · June 2005

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.

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.

Fatback · June 2005

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.

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?

DjArcadian · June 2005

]

I'm just offended that you find his (JN's) actions opportunistic and greedy. I find the B Boys defense bourgeois and smarmy.

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.

Jonny_Paycheck · June 2005

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.

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?

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....

twoply · June 2005

]

I'm just offended that you find his (JN's) actions opportunistic and greedy. I find the B Boys defense bourgeois and smarmy.

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.

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.

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Beasties v James Newton

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