U.S. Court Upholds Beastie Boys' Musical Sampling

[Guest ariceffron]

****DONT BE BIASED IN YOUR RESPONSES BEACUSE YOU GUYS LIKE JAZZ AND DONT LIKE RAP.....****

U.S. Court Upholds Beastie Boys' Musical Sampling

30 minutes ago Entertainment - Reuters

SAN FRANCISCO (Reuters) - A U.S. appeals court has handed a victory to pioneering punk-rap group the Beastie Boys in a dispute over the growing musical practice of sampling, in which recording artists incorporate snippets of other songs into their own work.

The 9th U.S. Circuit Court of Appeals (news - web sites) declined on Tuesday to reconsider its decision last year allowing the group to use a six-second segment of music from jazz flutist James Newton's 1978 composition "Choir."

A three-judge panel of the court held in 2003 that the band had abided by copyright protections by paying a license fee for a sample of Newton's recording and therefore did not have to pay an additional fee to license the underlying composition.

That finding upheld a lower-court dismissal of the case in favor of the Beastie Boys, and the 9th Circuit on Tuesday refused to reconsider its ruling before a larger 11-judge panel.

"We hold that Beastie Boys' use of a brief segment of that composition, consisting of three notes separated by a half-step over a background C note, is not sufficient to sustain a claim for infringement of Newton's copyright," Chief Judge Mary Schroeder wrote in her opinion.

The Beastie Boys used the sample in their song "Pass the Mic" on their 1992 album "Check Your Head."

Representatives for Newton and the Beastie Boys were not immediately available for comment.

The Beastie Boys helped spark the modern sampling trend in popular music with the 1989 album "Paul's Boutique," which incorporated bits of music from sources as diverse as Johnny Cash, Bob Marley and the Beatles to create new music. Sampling has since become a staple of many artists, especially in the rap and hip-hop genres.

The Beastie Boys have also emerged as leading advocates of a new approach to licensing known as the Creative Commons, in which artists record songs that listeners are invited to "rip, sample, mash and share" over file-sharing online networks like Kazaa or borrow to create their own compositions.

[RDK]

Good decision, I think. I know we discussed this a while back (maybe on the BN board) and most felt that the BB fairly compensated Newton and that his lawsuit was unwarranted.

[Rooster_Ties]

Yeah, from what I've heard about the case (some time back) -- I think it sounds like a good decision too.

[Jim Alfredson]

Can you imagine if these musical sampling copyright laws were used in the visual arts? Specifically painting, collage, sculptor, etc?

"Hey, you can't use that shade of red! I used that!"

[DTMX]

The record company owns the sound recordings. If you use a sound recording you have to pay the owner of said recording. It doesn't matter who or what the recording is of.

I designed cellular telephones fifteen years ago. My company built and sold tons of them. I got paid to do the design, but I didn't make a penny for the phones that were sold. And although I got to put my name on a couple of patents (like an artist copywriting a song), the company owns the design (a document, like a sound recording) and the company can do whatever they want with it. If they wanted to hand it over to another company to make cheapass green Teenage Mutant Ninja phones, that's their right and there's nothing I can do to stop my creation (which was created on their dollar) from being whored out.

The Beastie Boys paid the licensing fee to the record company. When Newton protested the BB offered him some money - something they were not obligated to do - but he called it "insulting". [Edited: Newton would have received royalties as the composer of the music, except that the courts decided "three notes separated by a half-step over a background C note" doesn't constitute a "composition". If that were the case, I'd copyright the 12-tone scale and all of the major and minor chords, then wait for the royalty checks to roll in.]

Note to James Newton: if you don't want your recordings whored out, then start your own publishing company, your own record label, and retain the rights to your master tapes. Lennon and McCartney lost the publishing rights to their own material, Michael Jackson scooped them up, and licensed the sound recording of "Revolution" to Nike. Artists work for the record company like a cow works for a farmer - and when the milk dries up, it's time for steak.

----------------------

Edited to add: The last sentence applies to the greedy corporations that only care about moving product, not the smaller independent labels who work with their artists for a mutually-satisfying and artistically-valid outcome.

\rant off.

Edited November 10, 2004 by DTMX

[DTMX]

Can you imagine if these musical sampling copyright laws were used in the visual arts?  Specifically painting, collage, sculptor, etc?

"Hey, you can't use that shade of red!  I used that!"

When I was researching copyright laws and licensing practices for my own CD (which had an arrangment of the James Bond Theme on it) I read up on copyrights in the visual arts and I couldn't figure it out for shit. A while back, I spilled some paint on my carport floor and never bothered to clean it up. Jackson Pollack's estate may have a case.

[paul secor]

I guess (no - I know) I'm old fashioned:

Screw "sampling", screw the copyright laws.

Write (or play) your own damn music! If you can't, you shouldn't call yourself a musician.

Edited November 10, 2004 by paul secor

[fent99]

I'm with Paul. The Beastie Boys would support Creative Commons wouldn't they, having never created anything original in their lives...

That big corporations lawyers have more success than musicians lawyers is no great surprise either.

I wonder if the shoe was on the other foot (if samples of the Beastie Boys were used by Justin Timberlake, to make lots of money) if they'd feel the same.

[Jim Alfredson]

What's the difference between sampling in music and collage in the visual arts? To say the Beastie Boys have not created anything original is ignorant. The originality comes in how you put the samples together, what samples you use, in what order, in what duration, in what rhythm.

Now substitute the word "notes" for samples in that last sentence. It's the same thing. And just like with notes it can be done well or done poorly.

[kdd]

OK, I'm not 100% clear about this but Newton composed the song and put it in his publishing company, he has rights. The record company owns the rights to that performance of the tune but not the tune. The Beastie Boys have to pay the record company to use a sample from that version of the tune but also to have to come to an agreement with the composer of the tune, get his permission to use a sample of his composition. They didn't do that. The court seems hung up on the fact that it is a simple melody with few notes but it's James Newton's simple melody with just a few notes. If was that simple why didn't the Beastie Boys just record their own version of it. They didn't, they owe James money. If James wanted too much money then they have to say fuck it and find something else or I'll dare say it again, record their own variation of the sample they wanted. All this should have been resolved before the recording was released. It wasn't, which means James should have the right to collect big here.

Creative Commons sounds like bullshit, a way to find stuff to sample without having to pay for it and what's in it for the composer, the thrill of someone sampling your music? How about if it sells a million copies and you get nothing, how will you feel about it then?

[Chrome]

I guess (no - I know) I'm old fashioned:

Screw "sampling", screw the copyright laws.

Write (or play) your own damn music! If you can't, you shouldn't call yourself a musician.

So, you're against jazz players who "quote" other artists in their solos?

[paul secor]

I guess (no - I know) I'm old fashioned:

Screw "sampling", screw the copyright laws.

Write (or play) your own damn music! If you can't, you shouldn't call yourself a musician.

So, you're against jazz players who "quote" other artists in their solos?

I doubt that I'd have any interest if a jazz musician took a tape of someone else's solo and used it as background for his/her own playing. That kind of thing might work as a one time novelty, but it would get old pretty fast.

My point is that sampling/stealing/whatever name you want to lay on it stifles creativity. What will the next generation do - sample samples?

Hey - if people like it, so be it. I'll stick with musicians who create their own music.

[RDK]

My point is that sampling/stealing/whatever name you want to lay on it stifles creativity.

Two words: "Cherokee."

[RDK]

****DONT BE BIASED IN YOUR RESPONSES BEACUSE YOU GUYS LIKE JAZZ AND DONT LIKE RAP.....****

I never thought I'd ever agree with Aric...

[DTMX]

I doubt that I'd have any interest if a jazz musician took a tape of someone else's solo and used it as background for his/her own playing.

Been there, done that.

[Jim Alfredson]

My point is that sampling/stealing/whatever name you want to lay on it stifles creativity.

Two words: "Cherokee."

Two words?

How exactly does sampling stifle creativity?

There will always be people creating music from standard instruments. Sampling is just another instrument that you can use.

[Chuck Nessa]

What if the author of a wildly successful video game used the image of your child as the villain? Hundreds of thousands of mofos out there think of your kid as a villain.

Give me a friggin' break - I'd wanna kill someone.

[RDK]

My point is that sampling/stealing/whatever name you want to lay on it stifles creativity.

Two words: "Cherokee."

Two words?

How exactly does sampling stifle creativity?

There will always be people creating music from standard instruments. Sampling is just another instrument that you can use.

Sorry, Jim, I thought I was being clever...

You're reading me wrong, though. I agree with you that sampling is (or, more accurately, can be) a valid form or artistic expression. The point I was trying to make (not well apparently) is that many jazz artists have used the notes of "Cherokee" as the jumping off point for countless improvizations and new tunes. How many times have we heard about some tune being based on "I Got Rhythm," for example? That's no different than sampling (or artistic collages) in my book. It's all based on the same underlying principles that drive the concept of public domain in the arts - that derivative artistic creations can be founded on the works of others in order to keep the arts fresh and relevant. Like Shakespeare's "Macbeth" becoming Kurosawa's "Throne of Blood." But now I'm getting offtrack...

[Noj]

James Newton was targeting a different audience than the Beastie Boys. James Newton didn't know how to loop his music into a hot hip hop beat, the Beastie Boys did. Also, by being sampled by the Beastie Boys freaks like me might try to track down James Newton's record to hear the whole song.

By charging for sampling the music industry has stifled rap's creativity. The Beastie Boys' Paul's Boutique is considered one of the greatest rap records ever simply because of the sheer volume of samples on it. That album could never happen today. James Newton fans could care less about the Beastie Boys, and many Beastie Boys fans probably wouldn't know who James Newton is without the Beasties having sampled him. I know I wouldn't.

[paul secor]

My point is that sampling/stealing/whatever name you want to lay on it stifles creativity.

Two words: "Cherokee."

Point taken.

To my ears, at least, Bird created something greater than what he stole from - the chords of "Cherokee" in this case. Bird played his own tune. Perhaps to your ears (or to others' ears) the Beastie Boys have done the same. I would rather listen to James Brown (or James Newton) than to listen to a rap artist sampling their music. But that's just me.

[Noj]

I would rather listen to James Brown (or James Newton) than to listen to a rap artist sampling their music. But that's just me.

I listen to both.

[Jim Alfredson]

What if the author of a wildly successful video game used the image of your child as the villain? Hundreds of thousands of mofos out there think of your kid as a villain.

Give me a friggin' break - I'd wanna kill someone.

Chuck, despite the common analogy, songs are not children. A child is a human being and using a human being's likeness without his/her permission is totally different that using a half second sample of somebody's song.

To me sampling is no different than lifting a bass line from a tune (such as Steely Dan taking the bass line from "Song For My Father" or Organissimo taking the drumbeat from The Meter's "Handclapping Song" for Clap Yo Hands).

[Chuck Nessa]

I disagree.

[ejp626]

Well, everyone comes at this differently. I think mostly in the academic framework, where someone can take roughly 4-8 sentences or a full paragraph of your work and stick it into their own work, as long as it is properly cited. (It's a little different for entire poems.) No money changes hands, and this is all under fair use. Some works of criticism stitch together dozens, perhaps even a hundred quotes. I really do have a lot of trouble viewing three notes as a full blown composition deserving the full court press of copyright protection. This sounds an awful lot like parody of Metallica, where Lars asked to copyright every song with an F chord descending to an E chord (or something along those lines).

[Jim Alfredson]

I disagree.

Ok.