Every now and then a judge rules on the right side of the copyright issue.
One musician disagrees. See the statement he's circulating online.
Polar responds, as do the Beasties.

September 18, 2002

Today I received an email of the statement below by musician, James Newton, who sued the Beastie Boys for using a sample taken from one of his recordings. The letter is reprinted in full. It is followed by my response and after that, a letter to the Washington Post by the Beastie Boys which the Post refused to print.


From: James Newton (renowned jazz musician)

For the last two years I have been involved in a suit because the Beastie Boys sampled a part of my composition "Choir" and did not contact me for permission. They did not change in any way what they sampled from "Choir". It begins with the sampled six and a half seconds and loops in the song over forty times. "Pass the Mic'" has appeared in CD, MP3, LP, and DVD formats.

The law clearly states that to use someone else's music one must contact and receive permission from both the record company and the copyright owner. "Choir" was registered with the copyright office and ASCAP in 1978. My publishing company JANEW MUSIC controls 100% of the rights. The Beastie Boys contacted and received permission from ECM Records, which released my album Alum which they sampled in 1992, and ignored me.

The case went up for summary judgement one month ago and Judge Nora Manuela of US Federal Court ruled against me!!!!!!!!!!! She stated as a fact of law that my music was not original! 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. The judge 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. If you go to the Beastie Boy's DVD of the piece "Pass the Mic" to signify the song there is only my flute sample and a drum beat.

The judge consistently used European paradigms to judge my music. An aria from Purcell's "Dido and Aeneas" and Cole Porter's "Night and Day" were examples of what is protectable. "Choir" is about four black women singing in a church in rural Arkansas. This work is a modern approach to a spiritual. As you well know, one would be hard-pressed to find multiphonic fingerings in most jazz scores, even when multiphonics are used!!!! If I'm writing for a classical ensemble I'll write out the multiphonic fingerings because of how notation is used in that culture of music.

The urgency of this letter is that after unjustly winning the case the Beastie Boys have filed a motion with the court for me to pay their legal fees of $492,000 after they stole my music. I have already spent a considerable amount of money for a creative musician and college professor. This would, of course, send me into bankruptcy, and I stand a chance of losing my home and all that I have worked for through the years. If you can spread news of this judgement around, it will help my cause greatly. The more newspapers, magazines and journals that this is placed in will help. Please inform us of any press that appears so that we can use it in our legal endeavors. My lawyer, Alan Korn (, and he can give you the information of where to send Amicus letters. This decision is a dangerous one that would affect jazz composers and other composers that choose to write in other ways. The strain on this trial and subsequent rulings have been immense. It has curtailed much of my artistic output because of the seriousness of this situation. This is a time when I have to now ask for your help. I am fighting for my rights and the ability to express myself in my own and any other cultural perspective that I choose as an artist.

Yours in music and freedom, James Newton

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Dear Mr. Newton,

I listened to "Pass The Mic" after reading your urgent call for justice and have found your situation compelling. I too am a composer and I use samples.

My reaction after hearing the song is, "Why is this guy wasting all his time, money and mental health over that sample?" It would appear from your letter that the Beasties based their track on a compositional hook of yours. I do hear the flute. Would you say that the flute sample is a more significant element than the rap and the groove? Is any aspect of the groove imbedded in that sample? If they played a C-Db-C on a flute and sustained a C2 key on a synthesizer would it have significantly altered "Pass The Mic"? What if they hadn't used the sample or anything like it, but just ate a sandwich and let the rhythm track and vocal stand as is -- would the absence of that flute texture have altered the character of their song in any serious way? I think not.

I'm really baffled here. Nobody bothered to sue John Cage when he used prerecorded material in "Fontana Mix." Nobody sued Joseph Cornell over the "stolen" objects (your term) in his collages and constructions. It's only when ghetto kids started doing the same thing that lawyers and some musicians got their backs up about collaging. Eric Dolphy proclaimed music to be "in the air." That was a pretty profound observation you might take to heart.

Your focus is so far off the issues you address that I wonder if you entered this sad fight on somebody else's bad advice. Look at what you're addressing in your court case: "...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." Multiphonics occur all the time, with or without intent. In fact, one of the great joys of Hip Hop is the multiphonic surprise caused by the clashing of layered samples. Having scored the multiphonic event doesn't make it sound any better or make it a higher calling. And this device does not a composition make, though it might make an interesting topic for a PHD thesis. ECM resolved the recorded performance aspect of the sample. As a compositional issue your case is pathetic. Cage would have had a better case had he sued Morton Feldman for plagiarizing large portions of 4'33".

I don't recall hearing whether Dvorak or Copeland compensated anybody for the folk tunes they appropriated for their various odes to the common man. Oh, right -- those songs were not covered by copyright law. It would be sad if those two composers' works were pre-empted by overreaching interpretations of those laws. The wielding of copyright like a blunt instrument is repressive and is almost always either opportunistic or the residue of some very personal resentments of certain individuals.

Every sax player or composer articulates the culmination of many decades, sometimes centuries, of borrowed styles, concepts and note sequences. Every novel and film is based, in some part, on an older story. Today, we musicians are not limited to notating our "stolen" ideas or imitating them on our instruments -- we use a snatch of recorded material. So what? This type of recycling has always been the way human beings legitimately create in the real world. You, Mr. Newton, did not emerge from the forest with the revelation of multiphonics and the groundbreaking sequence of the notes C-Db-C. Your attempts to legally enshrine those three little notes and their funny vibrations is silly and counter-productive to the creative process and spirit. You were done no harm.

I do draw the line on sampling without authorization. Ironically, a French DJ who calls himself DJ Cam used Eric Dolphy's "in the air" statement that was sampled from a Dolphy record. Cam used the entire statement plus a signifcant part of a Dolphy flute solo with no attribution. This is way over the line. That flute solo was a key element in Cam's piece. When Hammer used signature loops from Rick James' "Super Freak" and P Diddy used the Police's "Every Breath You Take" -- they based their entire tracks on the sampled loops. The new tracks were conspicuous rerenderings of the songs they poached from. And, I feel, authorization and copyright sharing was required.

I should also mention that, despite your claim, there is nothing in that sample of "The Choir" used in "Pass The Mic" that, to me, evokes "four black women singing in a church in rural Arkansas." Sounds to me like three New York Jewboys doing their version of Run DMC. If anybody has a legal case, it's Run DMC. I'm not surprised Judge Manuela was unimpressed with your case.

By the way -- if "music and freedom" was really your credo, you would be a happier man today.

Yours in music and freedom,

Polar Levine

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For the last year, we've been involved in a difficult legal battle with James Newton, a jazz musician and composer whose work was included as one of several samples in our song "Pass the Mic." We can only guess that Mr. Newton has gotten some very bad legal advice. He has refused generous settlement offers, instead mounting a very aggressive case against us for copyright infringement, which has cost us nearly $500,000 in legal fees.

Having lost this case on every count, Newton has now launched a defamatory email and press campaign, which most recently resulted in an article in the Washington Post.

This has been frustrating for us because we have no interest in taking advantage of anyone least of all other musicians and we made sure we had cleared the sample in question some 10 years ago. The sample is a flute sound -- six seconds from Newton's song "Choir" -- which runs through the background of "Pass the Mic" buried under our own live instrumentation as well as many other samples.

When we originally wanted to use the sample in 1992, we contacted ECM Records, the label that Newton gave permission to license the sound recording of "Choir," and cleared the sound recording with them. But we decided not to clear the composition.

Two things come into question when one is clearing a sample: the composition, and the sound recording. It is very important to understand the distinction between these two things in order to understand this case. A composition is a combination of words and musical notes, generally presented as sheet music. The copyright of the recording on the other hand, has to do with the uniqueness of the performance on that particular recording. The system exists because often songwriting and performing are two different lines of work.

An analogy to better explain the difference is this: 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."

In this case it may seem confusing because Mr. Newton is both the composer and the performer of the piece of music that was sampled. And this confusion is exactly what his case is built on. He and his legal team are attempting to blur the line between composition and recording. This blurring is not helpful to composers or performers. The reason that recordings and compositions are two distinct things is to protect both songwriters and performers.

We cleared the recording but did not clear the composition because what we used is three notes and three notes do not constitute a composition. If one could copyright the basic building blocks of music or grammar then there would be no room for making new compositions or books. The ruling in the case will not have a "chilling effect" as was erroneously stated in the Washington Post. These laws exist to protect composers, not hurt them.

If the Court had ruled that Newton has exclusive ownership of the series of notes, C/D flat/C, no one could write new music. And needless to mention there are many compositions predating "Choir" that use this same sequence of three notes.

As an aside, we slowed the sample down which changed the notes in question. So the notes that are in our song are not even the notes that are in Newton's recording or composition. This could be compared to paraphrasing.

Newton is now appealing his case to a higher court to try to get the decision overturned. If he succeeds in his efforts it will be a huge blow to forms of music that involve not only sampling, but all musical quotation. Jazz, hip hop and many other forms of contemporary music would be seriously affected by such a decision. Another likely consequence of the judge siding with Newton would be that it would empower and encourage more frivolous lawsuits. But it is doubtful that any court will side with him. To be frank, this case has already gotten a great deal more publicity than it warrants because the claims that are being made don't really make any sense.

Mr. Newton's lawyers have even gone so far as to argue that we have taken the central theme of Mr. Newton's song "Choir" and made it the central theme of our song. If you listen to his song it seems clear that the part that we sampled is not the central theme. The notes in question, C/D flat/C, never happen again in his composition. In fact, if you look at the sheet music that Mr. Newton submitted when he copyrighted his song, the sound that we sampled is not even represented in his score.

And in terms of what that sound represents in our song, we used it as a drone in the background. It has nothing to do with the central theme of our song. We could replace the flute drone with some other droning sound, or even remove it altogether and it would make no difference to our overall composition. Apart from the first time that the flute sound plays, it is so low in the mix that it is difficult to even hear it.

Newton's "Choir" is 4 min 30 sec long, and as far as we know is an original composition when viewed as a whole. What the judge found is that the three notes of Newton's recording which we sampled do not on their own constitute an original composition. She said however that what is unique is the specific performance of the three notes that we sampled, and that is precisely the thing that we licensed.

Newton gave his label ECM -- permission to license his work, and they in turn gave permission to us. If Mr. Newton feels this strongly about his sounds being used, he should not have made a contract with his label that enables them to license out his work.

Before spending a lot of money on the case we contacted Mr. Newton and offered him a generous out of court settlement in hopes of avoiding further legal fees. He responded by telling us that the offer was "insulting" and said that he wanted "millions" of dollars. In addition he told us that he wanted 50% ownership and control of our song, "Pass the Mic." But because Mr. Newton's flute sound is just one of hundreds of sounds in our song giving him 50% ownership of our song seemed unfair. That kind of split is sometimes done if one party writes all of the music and the other writes all of the lyrics. Newton by no stretch of the imagination wrote all of the music in "Pass the Mic."

We would suggest that any curious person listen to "Pass the Mic" and "Choir," and see if they think Newton deserves 50% of the songwriting.

The article in the Washington Post compared our sample to a song Biz Markie made. It is unfair to compare the Newton case with the Biz Markie case. Biz Markie's song involved use of the a large portion of the "Alone Again" song including the chorus, not three notes.

As to Mr. Newton's claims regarding our counter-suing him, our lawyers, at the request of the lawyers for the other defendants, as required by our contracts, made a motion to be reimbursed for our legal fees. This is standard procedure for the winner of the case as contained in the copyright laws. Mr. Newton's lawyers have told us that if they ever win they intend to do the same. In any case, the court did not award any fees. So Mr. Newton is in absolutely no danger of losing his home and life savings.

Furthermore, it is our opinion that Mr. Newton's lawyers should be responsible for covering our legal fees, not Mr. Newton himself. If the judge had granted our motion they, and not Mr. Newton would have paid. In the UK when people are unjustly sued the claimant's lawyers are usually responsible for the defendant's legal fees. We wish that were the case in the US as well, because people would think more carefully before throwing such frivolous lawsuits around.

Beastie Boys