Registered: Oct 2001
james newton case
below is a letter that we wrote to the washington post that they refused to run.
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.
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