[Rumori] beasties win sampling suit
kembrew mcleod
kembrew at kembrew.com
Mon Nov 15 08:19:56 PST 2004
On Nov 15, 2004, at 4:04 AM, Anthony Hall wrote:
> However, I disagree with Kembrew that this opens any window at all for
> appropriation: Strip the "sampling" tags out of this case, and it
> seems to me that it becomes a simple plagiarism suit, a la "My Sweet
> Lord". In which case the only window that opens is that people can
> appropriate the odd cluster of notes, which has been going on for a
> long long time.
The court ruled that the Beastie Boys’ use of the sample was minimal,
and that “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.” The Beasties didn't just appropriate an
odd cluster of notes--which you're right in saying that musicians have
been doing that for years--but they did it in the context of a sample,
which is why I cautiously said it opened up a "little" space for
sampling/appropriation. There are other recent cases that have helped
pry this window open.
In Williams v. Broadus, hip hop producer Marley Marl sued Snoop Dogg
for sampling his 1988 song “The Symphony.” In a very ironic defense
strategy, Snoop’s lawyers argued the following: Because Marl’s song
contained an unlicensed sample of an Otis Redding song, “Hard to
Handle,” Snoop’s borrowing wasn’t an infringement. The court dismissed
Snoop’s lawyers’ motion, stating that it was reasonable that a jury
might think Marl’s sample wasn’t a violation of Redding’s copyright and
should still be protected. In his summary judgment, District Judge
Michael Mukasey stated, “a work is not derivative simply because it
borrows from a pre-existing work.” He also stated that “a reasonable
finder of fact could nonetheless conclude that the copied measures of
‘Hard to Handle’ — two measures that appear only in the opening of that
composition — are not a substantial portion of the work.”
In Tuff v. Profile, Tuff ‘n’ Rumble Management claimed that Run DMC
sampled a drum break from the Honey Drippers’ 1973 song “Impeach the
President.” District Judge Sidney Stein ruled against Tuff because the
company couldn’t prove that it was the actual copyright owner, and it
went on to assert that Run DMC’s sample probably wasn’t an
infringement. The court said it would be difficult to demonstrate that
the sample would rise to the level of “substantial similarity” needed
to prove that the new recording infringed on the Honey Drippers’
copyright. Having assessed the two songs, Judge Stein ruled that the
Run-DMC song is not “substantially similar to ‘Impeach the President.’”
However, things got ever more confusing when that damn 6th Circuit
Court of Appeals involving N.W.A., which completely contradicts the
substance of these other rulings.
>
> my 2 shekels,
>
> Ant
>
> At 23:57 12/11/2004 +0000, you wrote:
>> Hi peeps
>> I have to disagree with this. It sounds like the guy must be getting
>> paid from the mechanicals that are paid to whoever controls the
>> recordings, being on a beastie's record is going to make those old
>> masters a great deal of cash.
>> I think there also should be some kind of recognition from the sampled
>> artists, that the people who make music and see themselves as
>> 'crate-diggers' do a fine job in making previously obscure recordings
>> trade once more(if they ever did in the first place). I sometimes
>> wonder why Fender don't try and claim a royalty every-time they hear
>> Dave Gilmore on a recording, or maybe Ray Charles' Rhodes? Well I
>> guess
>> that's cos they bought the instrument. Well some-one bought the
>> artist's record to sample it so, silly as it sounds, I kinda think
>> that
>> whoever buys it should be free to do as they wish with it.
>> I don't believe that it is always 'men in suits' who are driving
>> these
>> issues, most recording artist I have come across act grievously
>> wounded
>> in these situations and are more than happy with their barristers
>> requests to go for blood in any kind of negotiations. Although I do
>> see
>> the current music industry situation as redundant I think its
>> questionable if the industry is in any kind of terminal decline (mores
>> the pity) I still think we have a way to go and the next ripe bloated
>> target is for me the publishers. It's a misconception to have the
>> writing credits being some way fairer and more lucrative to an artist
>> than the mechanicals, quite often in my experience it's just another
>> layer in the fucked-over cake.
>> Kind regards to y'all,
>> JbZ
>> -----Original Message-----
>> From: rumori-bounces at detritus.net [mailto:rumori-bounces at detritus.net]
>> On Behalf Of kembrew mcleod
>> Sent: 11 November 2004 00:14
>> To: Detritus discussion list.
>> Subject: Re: [Rumori] beasties win sampling suit
>>
>> Quoting Samuel Carey <discosammy at yahoo.com>:
>>
>> > basically, the label gets paid but the artist doesn't?
>> >
>> > seems par for the course.
>>
>> yes.
>>
>> >
>> > kembrew mcleod <kembrew-mcleod at uiowa.edu> wrote:
>> > Unfortunately, it doesn't really contradict the NWA case, or at
>> least
>> not
>> > entirely. The thing that makes this case different is that the
>> Beastie
>> Boys,
>> > as
>> > I understand it, secured a mechanical license for the sound
>> recording
>> from
>> > the
>> > record company that released James Newton's record, but they didn't
>> get a
>> > publishing license from Newton, the songwriter. The Beasties claimed
>> that the
>> >
>> > part they took was so insubstantial that it didn't infringe on the
>> heart of
>> > Newton's composition, and Newton and his lawyer, Alan Korn,
>> disagreed,
>> but
>> > lost.
>> >
>> > However, the Beasties most likely would have been nailed if they
>> hadn't
>> > gotten
>> > that mechanical license for the sound recording, for sampling the
>> actual
>> > record. I haven't looked into this case as much as I'd like to, so
>> I'm
>> sure
>> > someone else might have a better, more nuanced explanation. Still,
>> it
>> does
>> > seem
>> > to open a little space for appropriation, though not much.
>> >
>> > Best,
>> >
>> > Kembrew
>> >
>> > Quoting stAllio! the original wanksta :
>> >
>> > > this decision would appear to be the exact opposite of the nwa
>> case
>> > > from a few months ago, but i haven't yet found an article with a
>> > > detailed enough analysis to be sure...
>> > >
>> > >
>> http://www.smh.com.au/news/World/You-gotta-fight-for-your-right-to-
>> sampl
>> e/
>> > 2004/11/10/1100021883656.html
>> > >
>> > > A US 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 US Circuit Court of Appeals declined today to reconsider
>> its
>> > > decision last year allowing the group to use a six-second segment
>> of
>> > > music from jazz flautist 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 licence 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 favour
>> of
>> > > the Beastie Boys, and the 9th Circuit today 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.
>> > >
>> > > =====
>> > > "how can we get the rapture if you don't vote for the antichrist?"
>> > > http://www.animalswithinanimals.com
>> > > http://badtastesucks.com
>> > >
>> > >
>> > >
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>> >
>> > --
>> > *******************
>> > kembrew mcleod
>> > assistant professor
>> > department of communication studies
>> > university of iowa
>> >
>> > contact info:
>> > 1037 e. washington st.
>> > iowa city, ia 52240
>> > kembrew-mcleod at uiowa.edu
>> > 319-341-3583
>> >
>> > Suffering Celebrity Quote of the Month: "I'm not capable of saying
>> to
>> someone
>> >
>> > words like 'I love you,' because I don't know what they mean
>> anymore."
>> > --Ethan
>> > Hawke
>> >
>> >
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>>
>> --
>> *******************
>> kembrew mcleod
>> assistant professor
>> department of communication studies
>> university of iowa
>>
>> contact info:
>> 1037 e. washington st.
>> iowa city, ia 52240
>> kembrew-mcleod at uiowa.edu
>> 319-341-3583
>>
>> Suffering Celebrity Quote of the Month: "I'm not capable of saying to
>> someone
>> words like 'I love you,' because I don't know what they mean anymore."
>> --Ethan
>> Hawke
>>
>>
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>
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>
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*******************
kembrew mcleod
assistant professor
department of communication studies
university of iowa
home contact info:
1037 e. washington st.
iowa city, ia 52240
kembrew-mcleod at uiowa.edu
319-341-3583
"We are going to show a new side of him. The Hoff will surprise people
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