Re: [rumori] newston vs. beasties - alan korn's reply

From: Steev Hise (
Date: Tue Jul 02 2002 - 11:32:43 PDT

---------- Forwarded message ----------
Date: Tue, 02 Jul 2002 11:18:18 -0700
From: Alan Korn <>
To: Steev Hise <>,
Subject: Re: [rumori] newston vs. beasties, my 2 cents

Since I haven't read any prior messages, I have no idea what's been
discussed about the issue.
As for my involvement, I'm a strong believer in fair use of copyrighted
material for purposes of parody, commentary and (esp.) criticism of
corporate behavior. But this sampling case was never about fair use. In
fact, Beastie Boys abandoned their fair use defense early on. Instead,
they simply argued the sample from the composition was unoriginal under
copyright and de minimis (i.e., unrecognizable).

While I believe strongly in fair use, I'm also a supporter of artist's
rights, and believe that Beastie Boys have a history of violating those
rights. I also think the arguments they've used in this case are an insult
to contemporary composers and artists like James Newton. In arguing the
sampled composition was unoriginal, Beastie Boys (wrongly) convinced the
court that music is primarily notation-based. The court accepted their
argument that protected elements of the composition were limited to what
was written in an unpublished version of the score deposited with the
Copyright Office. Remarkably, the court agreed with Beastie Boys that all
other non-notated musical elements were part of the licensed sound
recording as a matter of law. The court's analysis ignored the song's
rhythm, harmony, orchestration and structure (which were notated) as well
as the song's unique multiphonic pitches, tone, timbre, volume dynamics,
mood and character. In essence, the court dissected the "sound" out of its
music analysis, focusing instead on the visual notation of Newton's vocal
melody. This is a very unusual, reductionist view of Choir, and music in

Ultimately, I think the best solution for this issue would be for Congress
to adopt some kind of compulsory license system that permits digital
sampling while allowing sampled artists to get paid. Until then, I believe
popular artists like Beastie Boys who've achieved substantial commercial
success using the work of others have an ethical and legal obligation to
provide reimbursement of some kind, unless that use is otherwise protected
as fair use.

- Alan Korn

At 01:18 AM 7/2/2002 -0700, Steev Hise wrote:
>I'm unsure why you've cc'd Mr Korn without including any of the
>preceding messages in the thread unless maybe you've already
>forwarded them to him. But anyway if he wants to respond and
>explain why he's interested in representing Mr. Newton, that
>would be great.

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