I love my boys, and this whole situation makes me just sick. Right now, there’s no way for them to win. Newton says they didn’t offer him enough money, and then says he would have never given them permission in the first place — money or no.
This isn’t encouraging for artists that try to take the time to track other artists down to ask their permission — what if they say no?
It also sucks to find out your song is on a famous album — and nobody told you or bothered to try to track you down (since Newton is a professor at a major university, I doubt it would have been that hard to find him).
It seems like we need compulsory licensing for samples, so people don’t need permission, but can still get paid fairly.
At the same time, this ruling suggests that Newton didn’t need to be notified or paid for the use of his work — surely that’s not a precedent worth supporting!

The Flute Case That Fell Apart
— Ruling on Sampling Has Composers Rattled
by Teresa Wiltz for the Washington

Composers are nervously keeping an eye on the case,
wondering what kind of precedent it will set if Manella’s
ruling is upheld…Licensing a sample is a two-part
process: Permission is needed from both the record
label and the composer. The Beastie Boys licensed
the sample from Newton’s record label, Munich-based
ECM, but neither the company nor the group got
permission from Newton. Manella’s ruling in effect
said that since the sample was a recording and not
a composition, his permission wasn’t needed.
“The ruling in this case will have a chilling effect
on musically creative artists,” says Richard Kessler,
executive director of the American Music Center,
a New York-based arts service organization with
more than 3,000 composers in its membership.
Kessler said his organization is considering
joining an amicus brief with other musical
organizations for the appeal.
As Kessler sees it, “the idea that the judge
would take a look at these six notes and
determine that they are not original and
didn’t warrant protection, it’s something
musical artists, composers will and should fear.”

Continue reading →

Here’s an article for more backround about this situation, of which I just heard of today for the first time, and am not claiming to know anything about.

Nevertheless, I found the letter below (that was forwarded to me on a mailing list) pretty interesting:

To whom it may concern,

It seems like a real “Weird Nightmare” to be writing you this email.
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. Nevertheless the Beastie Boys only contacted and received
permission from ECM Records and ignored me.

The case went up for summary judgement one month ago and Judge Nora
Manella of US Federal Court ruled against me!!!!!!!!!!! She stated as
a fact of law that my music was
unoriginal!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! The liner
notes of Axum begins with a quote from the New York Times that “James
Newton is the most accomplished and original flutist now playing
Jazz”.The year that Axum was released (1982) was also the first year
that I won the Down Beat International Critics Poll as the best jazz
flutist. The judge must feel that her opinion is more significant
than all of the experts in the field.

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. She 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
their is only my flute sample and a drum beat . There is a
spectrograph that moves wildly when my multiphonics are played. If
there was only one pitch the movement would be minimal. She also
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.

Spirituals come out of the oral tradition, and if they are notated
they’re in the most simplest form which is the way that I wrote out
“Choir” On the same LP one can find “The Neser” which is influenced
by Ravel and is a 8-minute work for flute quartet where everything is
written out except a short alto flute cadenza. I certainly didn’t
become dumb when I dealt with my own culture in “Choir.” 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 bankrupcy, and I stand
a chance of losing my home and all that I have worked for through the
years. If you can spread the press release around to your colleagues
in the European press, it will help the 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. Also any of you that are heads of organizations
or lawyers please contact my lawyer, Alan Korn (aakorn@igc.org), 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. I have had plenty
of training to write all of my scores in the most eurocentric
Boulezian fashion but why should I be forced to to please a Judge who
has very limited musical knowledge, certainly little of the
Afro-American musical tradition. 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. For
many years I have tried to give much as an artist and educator to the
world community. This is a time when I have to now ask for your help.
I have never sued anyone in all of my years on the planet up to this
point. I am fighting for my rights and the abilty to express myself
in my own and any other cultural perspective that I choose as an
artist. Please spread this around as much as possible.

Yours in music and freedom,

James Newton