As I write, in early December 2002, the litigation between James Newton and the Beastie Boys is gearing for a rematch that could help redefine jazz composition (written or improvised) in copyright law. On November 22, the Beastie Boys filed their Opposition Brief to the Appellate Brief filed two months earlier by Newton. Newton’s attorney, Alan Korn, expects California’s Ninth Circuit to schedule oral arguments this summer. Newton is best known as the leading jazz flutist-composer to emerge in the late ’70s; he is also well established in the classical field and as an educator. The Beasties are a hip-hop group that first hit big in the mid-’80s. Here are the facts to date.
In 1982, ECM released James Newton’s critically acclaimed solo flute album, Axum. Newton wrote each of its nine selections, playing and overdubbing all the parts. In 1992, the Beastie Boys sampled a six-and-a-half-second figure from the opening of that album’s “Choir” for their song “Pass the Mic,” which went on to accrue multiplati-num sales on their Check Your Head album. Significantly, “Pass the Mic” uses the fragment much as “Choir” does-as an introductory figure and motif, the sample looped some 40 times as a background element. The Beastie Boys cleared the recording rights for “Choir” with ECM, but not composer and publishing rights with Newton, who is the copyright owner.
Newton didn’t know any of this. Though ECM issued him a $500 check in 1992, it was returned as undeliverable-he had recently moved. The label made no attempt to locate him, which would not have been difficult to do as he performed widely, not least in Munich, the company’s backyard, and was long associated with the California Institute of the Arts. He learned of the appropriation of his music in January 2000, when one of his students brought it to his attention. After hearing “Pass the Mic,” he sought legal action.
The Beasties offered him a flat settlement of $5,000, which Newton has characterized as “insulting.” They claim that they have since offered him $100,000 and that Newton demanded “millions”-this in an online letter to their fans (the clash has occasioned much Web talk, including flinty letters from both disputants). Yet Korn says that in November 2000, he asked if the Beastie Boys would “entertain a six-figure settlement,” and they answered, “Never.” By this time the Beastie Boys had won what may prove to be a Pyhrric victory in court. To his astonishment, Newton learned in June of that year that Judge Nora M. Manella decided in favor of the Beastie Boys, proclaiming the excerpt “un-original as a matter of law” because-watch the logic-it does not qualify as composition. The defining element, which makes the passage unique and presumably spurred the Beasties to adopt it, is the overlay of what Newton describes as “shifting multiphonics.” Judge Manella ruled that the multiphonics were not protected because they had not been notated. It cost the Beasties half a million dollars to win the point, a sum they are trying to reclaim from Newton.
This business of what is or is not scored gets to the heart of a copyright law long inimical to jazz. Count Basie played and recorded “One O’Clock Jump,” but he did not acquire legal rights to it until Buck Clayton transcribed the disc. Despite the dominance of recorded music over the past century, the law holds different standards for paper and tape. Recorded improvisation is not protected unless transcribed. Coleman Hawkins plays little more than a sliver of John Green’s melody in his version of “Body and Soul” (which, incidentally, Green greatly admired), but he did not participate in composer or mechanical royalties even though his variations proved durable enough to inspire orchestrations, lyrics and imitations.
The Beasties disingenuously argue that if the court gave Newton “exclusive ownership” of “Choir”‘s three-note motif, “no one could write new music.” That’s obviously true, but it makes Newton’s point: it’s the use to which he put those notes, including multiphonic chromaticism, that marks them with his distinctive stamp-again, the stamp that led the hip-hoppers to take it in the first place. More cleverly, they warn that a law that inhibits sampling will also affect “musical quotation,” which is endemic to jazz and every other kind of music. But clearly there is a difference between interpolating two measures of, say, “Love for Sale” in a blues and using a musical passage-for which the Beasties have been unable to cite any kind of equivalent-as the animating drone for a new work.
Korn even has a precedent: a decision regarding Tempo Music and Billy Stray-horn’s arrangement of “Satin Doll,” which states, “Particularly in the jazz music genre, musicians frequently move beyond traditional rules to create a range of dissonant and innovative sounds” that may be protected. He also has an amicus brief with support from Max Roach, Philip Glass, Steve Reich, Billy Taylor, Bill Frisell, the American Music Society, the Electronic Music Foundation and several others.