Cal State Music Professor Sues Rap Group
For Copyright Infringement
Case opens up new debate on intellectual property rightsJames Newton, a triple threat composer-performer-educator who has been showered with awards and commissions for his innovative work in the worlds of jazz, opera, ballet, classical and chamber music, is garnering international media attention due to a copyright infringement lawsuit he has filed against the Beastie Boys.
On May 21, Judge Nora Morella of California’s 9th U.S. District Court ruled in summary judgment (without proceeding to trial) to dismiss Newton’s copyright infringement suit against the rap group, which gained popularity in the 1980s.
Without waiting for Newton’s appeal, lawyers for Capitol Records slapped Newton with a retaliatory lawsuit, seeking $492,000 in attorney’s fees — an amount that, if granted, would have imposed a terrified silence on composers seeking to defend their work worldwide. Calls to Capitol Records went unreturned.
Morella denied the request in July. But Newton and his attorney Alan Korn were racing toward a Sept. 30 deadline for the filing of Newton’s appeal.
A professor of music at California State University-Los Angeles and director of music programming and research for the school’s renowned Luckman Fine Arts Center, Newton’s battle began over two years ago, while he was still teaching at the University of California-Irvine. A student walked into Newton’s jazz performance class and said: “Professor Newton, I didn’t know you had recorded with the Beastie Boys.”
Newton has worked with numerous jazz greats. He has also worked with symphonies and chamber groups from the Brooklyn Philharmonic to Zurich’s Ensemble Fur Neue Musik. But never the Beastie Boys, Newton told the student, who replied, ” ‘Well, I’m going to bring the CD in, because it sure sounds like you.’ “
Indeed, the sample sounded like Newton because it was Newton, who is known internationally for his pioneering work in “multiphonics,” which he describes as “singing into the flute” to create multiple tones simultaneously. It’s a technique that’s well known in certain African cultures but that, apart from Newton’s work and that of one or two avant-garde classical composers, is virtually unknown in the West.
The Beastie Boys, who have faced copyright infringement charges before, apparently loved the effect. They looped six seconds from Newton’s 1978 composition “Choir” over 40 times into “Pass the Mic,” from the band’s multiplatinum 1992 release, Check Your Head. And since, they have continued to use the sample in live performances, remix recordings and their recent DVD anthology. The song, with the Newton sample, has even turned up on an episode of “Beavis and Butthead.”
To be sure, Newton is credited in the CD’s liner notes as appearing “courtesy of ECM records.” But there’s just one problem: ECM never got Newton’s permission to sample the song, which it was required to do since Newton is the owner of the publishing rights to all his work.
The composer says his first response was to turn his dismay into a teachable moment. He addressed his class on a theme he has sounded many times before, but this time with a special urgency: “the responsibility that we have as artists — to copyright our work, to protect ourselves.”
Music copyright law is extremely complex, according to Newton and other experts in the field, containing innumerable loopholes that record companies may use to exploit artists. Indeed, one has only to consider the very complexity of the rights governing recordings. There are sound recording rights, which typically belong to the record companies, as well as musical composition rights. The composition rights are subdivided into songwriter’s rights, which typically belong to the artist, and publishing rights, which record companies often cozen the unsuspecting or inexperienced into signing away. Digital samplers, for example, must obtain permissions from the owners of both the sound recording and the publishing rights — and quite often, the record companies hold both.
For these very reasons, Newton has primarily recorded his own music and owns “100 percent” of his publishing rights.
“My approach has always been consistent with the thought that this is the thing I’m leaving behind for my (children),” Newton says. “I want the works to last, to be in my family for generations. That’s my prayer.”
Newton’s lawsuit claims that the Beastie Boys sampled not just the sound recording — which they had, in fact, received permission from his record company to use — but “the unique musical sound and characteristics created by (Newton’s) distinctive performance techniques.”
After all, Newton points out, if it were just the notes the band was after — Newton fingers C—D-flat—C on his flute while also singing the C note — they could have simply hired someone to play those notes on the recording. But Judge Morella disagreed. Citing the brevity of the passage and the fact that Newton had failed to notate the use of multiphonics on the copyrighted musical score, Morella ruled that the passage could not be protected because it was “not original as a matter of law.”
“Copyright law is very dismissive of improvisation. That’s true of music worldwide,” except in France and a few other nations, notes George Lewis, trombonist, composer, and a professor of music at the University of California-San Diego.
Academics and professionals from jazz and classical music are lining up to lend their names to the amicus curiae brief, to be filed with Newton’s appeal, according to Korn, Newton’s attorney.
“This could end up being a landmark case,” Lewis says, “because, basically, under current copyright law, the improvisations of Charlie Parker and John Coltrane and all kinds of geniuses have been completely exploited. This is a case that could change that. You could not underestimate how widespread and trenchant a change that would be. If the law started to recognize improvisation, the record companies would have to start paying folks for their work.”
Newton says he’s in it for the long haul.
“This struggle is so much bigger than me,” he says. “I am willing to lose everything I have to fight this. If this (decision) goes down as a matter of law, then (digital samplers) can just go straight to the record companies and the artists will get even less of the pie.
“As a child of the civil rights movement, I’m not going to lay down and let them steal my music and deny the intellectualism behind it just because it’s not coming out of a European paradigm.”
© Copyright 2005 by DiverseEducation.com