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yauch
Junior Member

Registered: Oct 2001
Location:
Posts: 18

james newton case

below is a letter that we wrote to the washington post that they refused to run.

adam



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.

Sincerely,
Beastie Boys

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Old Post 09-17-2002 12:13 AM
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minton
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Registered: Oct 2000
Location: Melbourne, Victoria, Australia
Posts: 5995

Thanks! I've been wanting to hear the other side of this after seeing so much of Newton's arguments presented. I'll get that up on BeastieBoys.com.


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Old Post 09-17-2002 12:18 AM
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mavsman
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Registered: Apr 2001
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Amen. That's how most of us feel too.


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Old Post 09-17-2002 12:21 AM
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-=TpK=-
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that needed to be settled. and thank you yauch/beastie boys for informing us person to person. media and rumors have been messing up most of our minds i would say.
Amen


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Last edited by -=TpK=- on 09-17-2002 at 01:56 AM

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Old Post 09-17-2002 01:26 AM
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cacklebunny
Junior Member

Registered: Sep 2002
Location: Cincinnati
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Smile

I hope that really is James and not an impostor!

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Old Post 09-17-2002 01:29 AM
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mavsman
Member of the Year

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Not James Newton. Check the profile.


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Old Post 09-17-2002 01:49 AM
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-=TpK=-
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quote:
Originally posted by mavsman
Not James Newton. Check the profile.
i was confused by the "posts:1" thing. oh well..


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Old Post 09-17-2002 01:56 AM
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senbei
Scientist

Registered: Mar 2001
Location: Lévis, Québec, Canada
Posts: 177

It's sad that the Washington Post won't post your response to their article, or at least a short follow-up.

Thanks for posting it here anyway, I'm sure that it'll eventually be read by people who aren't part of the usual crowd of this message board


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Old Post 09-17-2002 03:06 AM
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jimmy jrg
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cool, thanks for the info yauch.


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Old Post 09-17-2002 04:12 AM
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Eden
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Registered: Aug 2002
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Very interesting. Thanks for posting that, Adam! It's sad that that the Washington Post won't give your side of the story, but that's just how things are sometimes, unfortunately. Hope things work out for you fellas, and keep up the good work!

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Old Post 09-17-2002 04:49 AM
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jimmy jrg
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in my opinion, if you hadn't mentioned the post so much they would have published it. if you had of sent it to a rival paper then they would have published it because you mentioned the post so much funny world we live in


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Old Post 09-17-2002 06:45 AM
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Lambda
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Registered: Mar 2001
Location: wisconsin
Posts: 352

adam....your statement is now up on the msnbc site just to let ya know..


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Old Post 09-17-2002 07:37 AM
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Randy's Deadications
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thank you.


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Old Post 09-17-2002 10:27 AM
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jimmy jrg
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quote:
Originally posted by Lambda
adam....your statement is now up on the msnbc site just to let ya know..


who put that up?


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Old Post 09-17-2002 02:31 PM
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minton
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Registered: Oct 2000
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quote:
Originally posted by jimmy jrg


who put that up?



That was sent out by the band's publicist. I assume it was sent to a range of media outlets...


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Old Post 09-17-2002 03:45 PM
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jimmy jrg
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that was quick then.


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Old Post 09-17-2002 04:06 PM
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-=TpK=-
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to clear things out. a guy named "James Newton" on the message board posted a reply just above my first post pretending to be the actual james newton. this was most likely not the case though so the message was deleted just so that it wouldn't start rumors of any kind.


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Old Post 09-17-2002 04:30 PM
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jimmychamberlin
Junior Member

Registered: Sep 2002
Location: ontario, canada
Posts: 1

Angry newton thingy

hey, just wanted to say hey to the b-boys and best of luck...this newton guy is a little harsh. if he knew what kind of people you guys were then maybe he wouldn't be after you like this. so anyway, hope this gets worked out soon so you guys can just focus on continuing to make and promote great music.

later...

-adam


http://www.adamcoe.cjb.net
http://www.mp3.com/adamcoe

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Old Post 09-17-2002 06:31 PM
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brewskie
Junior Member

Registered: Jul 2000
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Not like I know too much or anything....but 50% of anything in business terms is just laughable.

Nice update though.

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Old Post 09-17-2002 07:38 PM
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adrockmelanie
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Registered: Aug 2002
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I think that Newton just needs to drop it. It's not like he's lost a huge amount of money the Beastie Boys or something like that. If anything, they probablyhelped his record sales and his popularity! I may just be speaking for myself here, but without the Beasties, I would've never even heard of James Newton.


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Old Post 09-17-2002 10:39 PM
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chechina
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Registered: Jan 2001
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I agree it's finally good to hear their side of the story. Though I admit, some of that legal jargon kinda went over my head as well
Pretty sad that it's for this reason that we finally get to hear from the Boys.


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Old Post 09-17-2002 10:51 PM
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The Great Svengarlic
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Registered: Jun 2000
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devil's advocate for Washington Post

While this letter is an interesting and well-explained rebut to Newton's campaign of defamation, it is wrong to come down on The Washington Post for not printing this letter (something I don't think Yauch is doing here, but some might).

I have not read the article in question, but I would speculate that the letter posted here is just as lengthy as the initial column. While The Post is certainly guilty of poor journalism, as it would appear they made no effort to contact Beastie Boys or their management for a comment in the article, given the state of world affairs I think their letters editor would rightfully opt to print letters regarding more immediate concerns than a (albeit expensive) legal squabble between musicians.

Mr. Yauch, sir, perhaps you might offer (rather than a letter or press release) some of your time in which to be interviewed by The Washington Post. I am sure that they would be more than willing to make space in their arts or business section for an interview with musicians of such renown as yourselves. The amount of content in a newspaper varies, while the amount of space allotted for letters is finite. [Granted, they could have edited your letter, but -- again -- I do believe there are more important things people are reacting to these days.] I think offering yourselves, rather than merely your written word, would be the best opportunity of making your voice heard. Not only that, but undoubtedly the article would then be picked-up by the AP wire and other news services to be dispersed further.

Oh yeah, no, I don't work for The Washington Post. I don't even live in D.C. and have only read this newspaper on-line.


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Old Post 09-17-2002 11:03 PM
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WhiteCastle33
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Registered: Aug 2002
Location: Ohio
Posts: 49

Talking hey yauch!

wow, i read and understood the whole thing; and i'm 16; booyah.


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Old Post 09-18-2002 03:05 AM
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DiscoJP
Senior Member

Registered: Mar 2000
Location: Ann Arbor, MI USA
Posts: 127

we got your back

Adam, good to hear from you, and thanks for taking the time to post that message.

I had thought the sample issue had been settled. wow, was i mistaken!! lol.

granted that i am one of the most hardcore of the hardcore beastie boys fans, i read your letter and arrived at the following conclusion: your argument is indeed sound and persuasive, and therefore i feel part of your situation. i won't say that i feel all of it, but i do feel part. what this boils down to is this: your intentions are NOT to get over on somebody and his/her music....your intentions are to get funky on the mic and give respect where respect is due....hence, you gave respect through reaching a clearance with the EMI company.

his argument, unfortunately, appears to be a tired attempt by a guy who has an intense need for cash and no real solution as to how to do it. so he'll do something to mess with somebody else....maybe that's not the best way to go, ya know...I wonder if he's ever thought that.

sending good vibes your way, say 'word' to Adam H and a very special 'rope' to Mike D....(sorry for referencing 1989 there, Mike....)

DiscoJP

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Old Post 09-18-2002 05:17 AM
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Stoffel79
Little Speedyhead

Registered: Oct 2000
Location: Belgium
Posts: 287

the thing is what bugged me the most is
why didn't he filled that case to the court back in 1992 when CYH came out or even, when pass the mic became a single?

No he waited until the beastie boys bacame a bit more popular (you have to admit nobody knew about the bboys anymore in 1992), and then he went right for the big bucks.
I hope won't get a cent out of this, don't be greedy man, you should be proud that the beastie boys ever wanted the sample your song. It probaly boosted his record sale too.

Think before you (re)act.


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Old Post 09-18-2002 10:55 AM
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melissam
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Registered: Sep 2002
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james newton case

Newton says Choir is a modern adaption of a spiritual. That means if the writer or writers were around, they could sue him.

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Old Post 09-18-2002 05:16 PM
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BizziB
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That's very clear information, thank you.


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Old Post 09-18-2002 08:53 PM
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cpjanda
Your Man ChuckChillOut

Registered: Jun 2001
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Posts: 127

quote:
Originally posted by Stoffel79
(you have to admit nobody knew about the bboys anymore in 1992)


You know that hurts us older fans!!!!

Ha Ha Ha!

I saw them twice in 1992!

Chuck

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Old Post 09-19-2002 12:00 AM
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-=TpK=-
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quote:
Originally posted by cpjanda


You know that hurts us older fans!!!!

Ha Ha Ha!

I saw them twice in 1992!

Chuck

and what do you think you're doing to the more recent fans when saying that? haha at least i COULD have seen them in 95..i would walk around naked a full day to see them live in 92 two friggin times! any pics or anything?


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discodistortion
Supreme Member

Registered: May 2002
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i you yauch. you want to know why? you can get funky on the mic, and then you get all serious.

quote:
If You Can Feel What I'm Feeling Then It's A Musical Masterpiece
But If You Can Hear What I'm Dealing With Then That's Cool At Least


newton isn't feelin' what you feel or hearin' what you deal.


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