Beasties Beat James Newton, Again

In the ongoing tug-of-war between avant-garde jazz flutist James Newton and sample-happy hip-hop group the Beastie Boys, it seems the Boys may have had the last laugh; a U.S. Court of Appeals for the Ninth Circuit upheld the court’s original decision last week, again finding in favor of the Beastie Boys, citing that the Beastie Boys’ sampling from a 1981 Newton recording was fully legal and authorized.

The back story goes like this: The Beastie Boys sampled a six-and-a half second section of Newton’s composition “Choir” and used it in their song “Pass the Mic,” which appeared on their 1992 album Check Your Head. The sample, which is looped and repeats 40 times throughout “Pass the Mic,” operates as the song’s leading motif and came from Newton’s 1981 album Axum, on ECM Records. Though the Beasties Boys received permission from ECM to use the sample, paid for the privilege and credited Newton in Check Your Head‘s liner notes, Newton filed suit against the Beastie Boys in 2000, claiming his composition had been stolen because the sample was not cleared directly by himself or his publishing company, Janew Music.

In an open letter from James Newton following the court’s initial decision finding in favor of the Beastie Boys, he explained his grounds for a case: “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. [Judge Nora Manella of US Federal Court] 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.”

(Oh, you nerdy jazz musicians, with your multiphonics and your C2s.)

The situation does fall into a gray area because of confusing laws that place a legal distinction between a performance and a composition.

In an official press statement from the Beastie Boys following their initial victory more than a year ago, the group defended their use of the sample and the court decision: “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.'”

The Beasties won the case in 2002 on the grounds that the Newton sample was not protected by copyright law as a musical composition. The court stated that a sequence of three known notes is “unoriginal as a matter of law.”

The appeals court agreed, stating that there was no copyright infringement because the sample was so short and that Newton was now down to arguing that the Beastie Boys use of the sample was an appropriation of “Choir.” The court stated that “having failed to demonstrate any quantitative or qualitative significance of the sample in the ‘Choir’ composition as a whole, Newton is in a weak position to argue that the similarities between the works are substantial, or that an average audience would recognize the appropriation.”

Originally Published November 14, 2003