Sampling Newton -v- Diamond and Others (2003)

December 2003

Music Publishing, Record Labels, Artists

In 1992 the Beastie Boys got a license from ECM Records to sample a copyrighted sound recording from James W. Newton Jr.’s flute composition, Choir. The group sampled and used a six-second, three-note sequence and looped it throughout its song “Pass the Mic,” featured on the Capitol album “Check Your Head.”

In 2000, Newton who also composed the work, sued the Beastie Boys, alleging that the remix infringed the “heart” of his flute composition, and that the band should have obtained a license from him as the composer of the underlying work in addition to obtaining a sample to use the recording. The US Appeals Court, affirming the court of first instance’s decision, held that there was no infringement because the use of the sample was minimal and there were no substantial similarities between the two works or that the average person would recognise the appropriation.

COMMENT : The band clearly felt that they had obtained the relevant appropriate licence: They had gone to the owner of a recording they wished to sample and licensed this. As they had only used three ‘unidentifiable’ notes in sequence they believed (rightly it seems) that they hadn’t used the ‘composition’ so needed no permission from the author or publisher of this work. The court supported this and this case pulls the law back from the position which seemed to be developing that ‘all sampling needs permission’ and this case coupled with the ‘Ghosface Kilah’ decision above allowing the concept of ‘fair use’ to be used in revisiting lyrics gives some limited defences in sampling cases. However, the question of what is and isn’t identifiable, may well trouble the courts for some time to come and particularly with recordings the maxim “if its worth copying, its worth protecting” still holds true.

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