Beastie Boys sued over ‘Licensed to Ill’ and ‘Paul’s Boutique’ samples

[YoungRemy]

paging Johnny Chavello

[JoLovesMCA]

fuck them.

[FLO MASTER]

well I was speaking to a few artists that are in the music biz and they told me a simalar story. they sampled a song from puerto rico (they thought it was an childhood song that belonged to nobody) and a few months later, a little old lady approached them and said "my husband wrote that song and now you have to pay me". well, the brothers went over to thier record label, which owned the songs and they (the record label) had to pay her. so, I think the beasties will be cleared of this thus making DEF JAM and Capital the ones that have to pay.


here is the sample/lyrics they used:

http://www.youtube.com/watch?v=1DU8QCfi-R8

[JohnnyChavello]

Originally Posted by YoungRemy

paging Johnny Chavello

I agree: fuck 'em.

First of all, it's good that the case is being tried in New York. Other jurisdictions in the US (in and around Nashville, for example) have developed case law on sampling that sucks hard. The Ninth Circuit (NY and surrounding areas) doesn't have the same precedent, so it will be easier for the Beasties, Capitol, etc. to argue that the samples don't amount to actual infringement. With some of the samples (and I haven't listened to all of the original recordings), I think that argument might be pretty strong.

Even if a court were to find infringement, fair use can be raised as a defense. I think most of the samples I've heard should qualify as fair use, although it is a lot more complicated than people realize. Nonetheless, I think it could be a strong argument for at least some of the samples.

Companies don't often like to litigate fair use claims because it takes more time and ends up being a lot more expensive. In a lot of cases, people cut their losses when infringement is found and simply settle for some undisclosed amount. I really hope everyone has the balls to push forward on fair use here because there's actually very little case law on how fair use applies to digital sampling. Imagine if the Beasties' legacy including making it easier for artists to claim fair use for transformative samples? They would be, and the album would be, even more monumental and important than they already are.

Finally, there are definite issues with this case being brought 25 years after the initial "infringement." Certain legal doctrines (apart from the statute of limitations) require copyright owners to act within a reasonable time in order to successfully assert their rights.

It's all really interesting, but still very complicated. I hope they let it play out and clear some new ground for artists who sample. It would be long overdue.

[spacemac9000]

It makes me wonder if they filed on purpose during this time? If it fits into sone sort of shitty strategy ?

Not that they could of planned MCA's passing but maybe they were not going to sue but now it has become more opportunistic for them.
scumbag lawyers

plus doesn't this predate the major copyright rulings?

[silence7]

The legal issues with this are being discussed here as well..

http://www.techdirt.com/articles/201...l-albums.shtml

[JohnnyChavello]

Originally Posted by silence7

The legal issues with this are being discussed here as well..

http://www.techdirt.com/articles/201...l-albums.shtml

That's a decent introduction to some of the issues, but I have a major bone to pick with them on the law. They write that courts have "more or less entirely [tossed] out the concepts of fair use, transformative work and de minimis copying that should protect samplers in many cases."

This is only true with respect to de minimis copying (and even there, only in one circuit), but not at all true with respect to fair use. Fair use's roots in the common law are as old as copyright law itself. There is no particular type of work (music or otherwise) that is outside of the scope of fair use in and of itself and I don't know of a single copyright case that would even suggest it.

[MarcusCarab]

That's a decent introduction to some of the issues, but I have a major bone to pick with them on the law. They write that courts have "more or less entirely [tossed] out the concepts of fair use, transformative work and de minimis copying that should protect samplers in many cases."

This is only true with respect to de minimis copying (and even there, only in one circuit), but not at all true with respect to fair use. Fair use's roots in the common law are as old as copyright law itself. There is no particular type of work (music or otherwise) that is outside of the scope of fair use in and of itself and I don't know of a single copyright case that would even suggest it.

Hi Johnny - I'm the author of that piece. You definitely have a point here. I was a little annoyed when I read the news and wrote the post, so I was quite forceful in my language - but I still do mean something when I say the courts wiped out fair use in sampling

I'm referring to the bright-line "get a license or don't sample" ruling from Bridgeport, which clearly struck down de minimis, but was also issued without any analysis of the fair use issue (mainly for procedural reasons). To quote from Jason Mazzone's book Copyfraud:

An especially troubling consequence of the Bridgeport case is that its bright-line rule—“Get a license or do not sample”—comes without any analysis of fair use. Because the lower court applied the de minimis standard and found no infringement, it did not consider whether the fair use defense applied. On appeal, the Sixth Circuit panel declined to decide whether the sample at issue was protected by fair use because it wanted the lower court to consider that issue first upon remand of the case. However, after the Sixth Circuit’s decision, the dispute settled. There was, therefore, never a fair use ruling in the case. It is unfortunate that a seemingly decisive decision by a federal appellate court on the lawfulness of sampling comes without any consideration of whether fair use protects sampling.

Here, a difference between the doctrine of de minimis copying and fair use matters a great deal. The doctrine of de minimis copying is a judge-made rule. In the final analysis, it is the prerogative of courts to tailor the doctrine as they see fit. Fair use, however, is a statutory provision that binds judges. It limits, without exception, all the exclusive rights of copyright owners. Some copying from copyrighted recordings is, necessarily, fair use. Because of the procedural history of Bridgeport, however, we never learn if fair use protects the defendants’ use of the sample from Funkadelic’s tune. The unsurprising result is that copyright owners (and samplers themselves) treat Bridgeport as standing for the proposition that all sampling is infringement. Even though the Copyright Act protects fair use of all species of copyrighted works, a legal decision on the question of de minimis copying enables copyright owners to assert that there is no fair use when it comes to sound recordings.

Subsequent case law has also not dealt squarely with the fair use issue. Although the Sixth Circuit has decided a slew of additional disputes involving litigation by Bridgeport Music, it has never decided whether sampling is protected by fair use. Another federal court could disagree with the Sixth Circuit and find that the de minimis doctrine applies to sampling. A different court could also find that sampling is protected by fair use. But Bridgeport has cast a wide shadow, and rather than go before a (different) court to test the legality of sampling, producers have instead opted to obtain sampling licenses. While courts have held that fair use applies to compositions, courts have provided no guidance on when sampling from an existing sound recording constitutes fair use. Says Philo T. Farnsworth, the owner of a label that releases sampled recordings, “We’d love to see a court case or legislation recognize transformative sampling as fair use. As of this moment it seems to exist in a very gray area.”

The industry seems to have shaped itself around Bridgeport, and though most sampling on free mixtapes goes ignored (though 50 Cent was recently sued over one) all commercial stuff gets licensed. Thankfully, as you say, and as Mazzone says, there are still plenty of ways that fair use could be re-asserted in the courts - but at the moment, thanks to the far-reaching implications of Bridgeport, it is effectively toothless when it comes to sampling.

[JohnnyChavello]

Originally Posted by MarcusCarab

The industry seems to have shaped itself around Bridgeport, and though most sampling on free mixtapes goes ignored (though 50 Cent was recently sued over one) all commercial stuff gets licensed. Thankfully, as you say, and as Mazzone says, there are still plenty of ways that fair use could be re-asserted in the courts - but at the moment, thanks to the far-reaching implications of Bridgeport, it is effectively toothless when it comes to sampling.

I hear you on Bridgeport. I spent a couple of years of my life a while back writing and publishing an article on that case and sampling generally. Still, although Bridgeport's impact on de minimis copying and substantial similarity definitely sets the stage for what kinds of samples record companies think need to be licensed, that has more to do with the risk averse nature of record companies than it does with the law. You can see that in cases of unsigned groups that sample: most institutional copyright owners don't go after them because they really don't want a precedent setting case on fair use in sampling. They know the logic of Bridgeport wouldn't apply. That's not to say that courts aren't also conservative in evaluating what is and isn't fair use, but the defense stands as it applies to samples.

[brooklyndust]

Originally Posted by spacemac9000

It makes me wonder if they filed on purpose during this time? If it fits into sone sort of shitty strategy ?

I think it could be more of a James Newton type thing. The band was completely unaware that their music was sampled until all the recent publicity.

[CHECKHEAD2004]

Such BS. I hope they don't settle.