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Ruling on Sampling by Teresa Wiltz This is how jazz flutist James Newton found out -- eight years after the fact -- that he was on a popular rap recording: A student strolled into his class and said hey, prof, I didn't know you performed with the Beastie Boys. Newton wasn't happy. A six-second snippet of his song "Choir" was a featured attraction in the 1992 Beastie Boys hit "Pass the Mic." He says that he's never received any compensation for the band's use of the recording and that the Beastie Boys never bothered to ask his permission. Finding out that the song had made it onto a "Beavis & Butt-head" cartoon only fueled his ire. 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. At issue are complicated questions of copyright law, and whether Newton's permission was needed for the "Choir" sample. Licensing a sample is a two-part process: Permission is needed from both the record label and the composer. The Beastie Boys licensed the sample from Newton's record label, Munich-based ECM, but neither the company nor the group got permission from Newton. Manella's ruling in effect said that since the sample was a recording and not a composition, his permission wasn't needed. "The ruling in this case will have a chilling effect on musically creative artists," says Richard Kessler, executive director of the American Music Center, a New York-based arts service organization with more than 3,000 composers in its membership. Kessler said his organization is considering joining an amicus brief with other musical organizations for the appeal. As Kessler sees it, "the idea that the judge would take a look at these six notes and determine that they are not original and didn't warrant protection, it's something musical artists, composers will and should fear." Says Billy Taylor, jazz pianist, composer and Kennedy Center fixture: "If I create something, whether I create it in my head or on some electronic machine, it's just as finite as if I write it on a sheet of paper. It doesn't matter if it's not written down if it's something he created, whether he whistled it or hummed it." The sequence in question is a six-second sample of "Choir," a 1982 recording during which Newton simultaneously sings notes while playing the flute using an overblowing technique, creating a "multiphonic" composition. The segment, which was inspired by Newton's Southern Baptist roots, opens "Pass the Mic," and then loops repeatedly throughout the piece. The Beastie Boys album "Check Your Head," released in 1992, went multi-platinum. The Beastie Boys continue to perform the song in concert, and it appears on a DVD released in 2000. The Beastie Boys' attorney, Adam Streisand, did not return a phone call requesting comment. In a prepared statement, Mike D of the Beastie Boys said: "We have dealt with this entire matter legally and fairly from day one. It's clear by the judge's rulings that she agreed as well. It's unfortunate that Mr. Newton wouldn't reason with us earlier and that it had to come to this." Newton said that the Beastie Boys offered to compensate him for the use of his material but that the figure was "insulting." Neither he nor his attorney, Alan Korn, would comment on the amount of the offer. A spokesperson for ECM said that the label tried to contact Newton, but the flutist had moved and the company did not have a current telephone number. The label mailed him a check, for a modest amount, the standard fee for licensing agreements, but it was returned for lack of a forwarding address.
This isn't the first time the Beastie Boys were sued for copyright infringement related to sampling, nor is it the first time that a rapper has been sued for sampling. In a 1991 landmark ruling, Biz Markie lost a court case for sampling Gilbert O'Sullivan's 1977 hit "Alone Again (Naturally)" in his song "Alone Again." His record "I Need A Haircut" on which the single appeared, was subsequently pulled from the shelves. "For my music to be dispelled by the court in this fashion was a very difficult pill for me to swallow," Newton said. "It sounds racist to me," Taylor said. "Pure English. Here's a [judge] who's saying if it's not written in the old European form that I may have heard about from someone who studied Mozart," it's not a legitimate composition. (c) 2002 The Washington Post Company ====================================== An Open Letter From For the last two years I have been involved in a suit because the Beastie Boys sampled a part of my composition "Choir" and did not contact me for permission. They did not change in any way what they sampled from "Choir". It begins with the sampled six and a half seconds and loops in the song over forty times. "Pass the Mic'" has appeared in CD, MP3, LP, and DVD formats. The law clearly states that to use someone else's music one must contact and receive permission from both the record company and the copyright owner. "Choir" was registered with the copyright office and ASCAP in 1978. My publishing company JANEW MUSIC controls 100% of the rights. Nevertheless the Beastie Boys only contacted and received permission from ECM Records and ignored me. The case went up for summary judgement one month ago and Judge Nora Manella of US Federal Court ruled against me!!!!!!!!!!! She stated as a fact of law that my music was unoriginal!!!!!! The liner notes of Axum begins with a quote from the New York Times that "James Newton is the most accomplished and original flutist now playing Jazz". The year that Axum was released (1982) was also the first year that I won the Down Beat International Critics Poll as the best jazz flutist. The judge must feel that her opinion is more significant than all of the experts in the field. The six and a half second sample consists of three sung notes C, Db ,C and a held flute harmonic C2, as a result of the combination of voice, harmonic and a balanced distribution of each a series of shifting multiphonics are created. She ignored the multiphonics because they weren't written on the score and said that there are just three notes in the score which aren't protectable. If you go to the Beastie Boy's DVD of the piece "Pass the Mic" to signify the song their is only my flute sample and a drum beat. There is a spectrograph that moves wildly when my multiphonics are played. If there was only one pitch the movement would be minimal. She also consistently used European paradigms to judge my music. An aria from Purcell's "Dido and Aeneas" and Cole Porter's "Night and Day" were examples of what is protectable. "Choir" is about four black women singing in a church in rural Arkansas. This work is a modern approach to a spiritual. As you well know, one would be hard-pressed to find multiphonic fingerings in most jazz scores, even when multiphonics are used!!!! If I'm writing for a classical ensemble I'll write out the multiphonic fingerings because of how notation is used in that culture of music. Spirituals come out of the oral tradition, and if they are notated they're in the most simplest form which is the way that I wrote out "Choir". On the same LP one can find "The Neser" which is influenced by Ravel and is a 8-minute work for flute quartet where everything is written out except a short alto flute cadenza. I certainly didn't become dumb when I dealt with my own culture in "Choir." The urgency of this letter is that after unjustly winning the case the Beastie Boys have filed a motion with the court for me to pay their legal fees of $492,000 after they stole my music. I have already spent a considerable amount of money for a creative musician and college professor. This would, of course, send me into bankrupcy, and I stand a chance of losing my home and all that I have worked for through the years. If you can spread the press release around to your colleagues in the press, it will help the cause greatly. The more newspapers, magazines and journals that this is placed in will help. Please inform us of any press that appears so that we can use it in our legal endeavors. Also any of you that are heads of organizations or lawyers please contact my lawyer, Alan Korn (aakorn@igc.org), and he can give you the information of where to send Amicus letters. This decision is a dangerous one that would affect jazz composers and other composers that choose to write in other ways. I have had plenty of training to write all of my scores in the most eurocentric Boulezian fashion but why should I be forced to please a Judge who has very limited musical knowledge, certainly little of the Afro-American musical tradition. The strain on this trial and subsequent rulings have been immense. It has curtailed much of my artistic output because of the seriousness of this situation. For many years I have tried to give much as an artist and educator to the world community. This is a time when I have to now ask for your help. I have never sued anyone in all of my years on the planet up to this point. I am fighting for my rights and the ability to express myself in my own and any other cultural perspective that I choose as an artist. Please spread this around as much as possible. Yours in music and freedom, James Newton |
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