well spent most of today reading on-line about this, steev's right: it
took me going through about four different articles before I could gain
enough information to really figure out how this one went down. I'll try a
brief version:
Beastie Boys turn over their new record to their personal lawyers to clear
samples (in the industry, this is usually done by the artist's lawyers
before turning the album over to the label; most record contracts have
indemnification clauses to spare them of all corporate liability should any
sampling cases turn up, as was the case here.)
Their clever lawyers go to ECM and clear the rights to the copyright held
in the recording. The lawyers figure (gambling perhaps) that the sample is
very short, and so they don't have to worry about the underlying
composition. The copyright to the recording is held by ECM; the lawyers
never bother to contact Newton. Newton's never paid, and chances are they
buy the license for very little money.
The song becomes the first track on their big big big comeback album,
becomes a hit single, video, DVD, etc. Although it's credited, Newton's
not getting paid, (or if ECM's nice enough to be cutting him checks,
they're a pittance).
The sample is NOT a single blast, it's THE MAIN RIFF OF THE SONG. The riff
is looped 40+ times, it's the only thing in the song I remember! Newton's
spent his life learning how to play chords with a flute through special
breathing techniques, and his style is incredibly distinctive, filled with
weird floating overtones, it sounds amazing, he's one of the only people
who does that. Their single's success owes a debt to Newton's work.
A little more background on Newton I found out today with Google; after
decades of critically successful recordings, he can't find a record label
to release his new work, and meanwhile the beastie's song is STILL playing
on the radio 5 years later and he's not getting paid. So he's pissed. So
he sues, thinking it's a done deal: the law requires sample clearence for
both the recording, and the underlying composition, which he owns himself.
So he shows up in court with the sheet music to the piece, which indicates
a three note blues riff: his multiphonic breathing/singing technique is
not notated (i.e. what makes the composition unique). Simply on the basis
of the 3 notes on the sheet music, it's ruled that the section of the
COMPOSITION that the Beasties sampled is a generic, uncopyrightable 3 note
sequence. The ruling goes against him. Whoops.
Now the Beasties are countersuing for their court costs, half a million
dollars. He's fucked in the biggest way. I feel terrible for him. I
don't know how many millions the Beasties are worth, but I wish they'd drop
the case, they owe Newton that much for the song. If they think their
hands are clean because they paid ECM for the sample, they're not thinking
hard enough about what it means to be a musician.
(None of this would be an ISSUE if musicians owned the copyright to their
own RECORDINGS. That's where the fucking PROBLEM IS. But that's too much
to ask for, apparently.)
Many people would argue that Newton should merely enjoy his elevated fame
as the result of being sampled by one of the biggest pop rap acts, that you
can't buy that kind of publicity, etc. But my argument is, this song was a
single, it's played at every concert, it's on the greatest hits, got played
on radio and MTV: you know they made serious money off this ONE song.
Maybe Newton shouldn't have sued (contacting them personally might have
been possible), but he was owed, and I understand his anger and I feel for
the guy now.
It's always like this. The big labels seldom pay for small-label samples
if they can get away with it. Island Records sues Negativland for sampling
U2, but how much are the Tape-beatles paid when a 90 second intact sample
from their album is used intact on a record by the Orb released by Island
two years later? That's right. Nothing. You try to argue a level playing
field for sample use, but the rules are different depending on where you're
playing from.
jl
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