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."

Here's the full text of the article in case the link goes bad:

http://www.washingtonpost.com/wp-dyn/articles/A47321-2002Aug21.html

The Flute Case That Fell Apart
Ruling on Sampling Has Composers Rattled

By Teresa Wiltz
Washington Post Staff Writer
Thursday, August 22, 2002; Page C01

This is how jazz flutist James Newton found out -- eight years after the
fact -- that he was on a popular rap recording: A student strolled into his
class and said hey, prof, I didn't know you performed with the Beastie Boys.

Newton wasn't happy. A six-second snippet of his song "Choir" was a featured
attraction in the 1992 Beastie Boys hit "Pass the Mic." He says that he's
never received any compensation for the band's use of the recording and that
the Beastie Boys never bothered to ask his permission.

Finding out that the song had made it onto a "Beavis & Butt-head" cartoon
only fueled his ire. Newton, a professor at California State University, Los
Angeles, says that if he'd been asked, he never would have granted his
permission. So in 2000 he sued the Beastie Boys, charging the group with
copyright infringement. And, to his surprise and rage in June, he learned
he'd lost the case.

In her ruling, U.S. District Court Judge Nora M. Manella said that Newton's
sequence was basically a "recording," for which Newton and his publisher had
already been compensated, as opposed to a "composition," and that it was
"unoriginal as a matter of law." (She also denied a motion filed by the
Beastie Boys seeking reimbursement from Newton for almost $500,000 in legal
fees.) Newton is appealing the decision, and has taken to the Internet in
search of support.

The case in the U.S. District Court for the Central District of California
pits Newton, a critically acclaimed avant-garde jazz flutist and former
Guggenheim fellow, against the Beastie Boys, a rap group known for both its
innovation in sampling (the use of snippets of other artists' recordings)
and for its progressive politics.

Composers are nervously keeping an eye on the case, wondering what kind of
precedent it will set if Manella's ruling is upheld.

At issue are complicated questions of copyright law, and whether Newton's
permission was needed for the "Choir" sample. 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."

Says Billy Taylor, jazz pianist, composer and Kennedy Center fixture: "If I
create something, whether I create it in my head or on some electronic
machine, it's just as finite as if I write it on a sheet of paper. It
doesn't matter if it's not written down if it's something he created,
whether he whistled it or hummed it."

The sequence in question is a six-second sample of "Choir," a 1982 recording
during which Newton simultaneously sings notes while playing the flute using
an overblowing technique, creating a "multiphonic" composition. The segment,
which was inspired by Newton's Southern Baptist roots, opens "Pass the Mic,"
and then loops repeatedly throughout the piece. The Beastie Boys album
"Check Your Head," released in 1992, went multi-platinum. The Beastie Boys
continue to perform the song in concert, and it appears on a DVD released in
2000.

The Beastie Boys' attorney, Adam Streisand, did not return a phone call
requesting comment. In a prepared statement, Mike D of the Beastie Boys
said: "We have dealt with this entire matter legally and fairly from day
one. It's clear by the judge's rulings that she agreed as well. It's
unfortunate that Mr. Newton wouldn't reason with us earlier and that it had
to come to this."

Newton said that the Beastie Boys offered to compensate him for the use of
his material but that the figure was "insulting." Neither he nor his
attorney, Alan Korn, would comment on the amount of the offer. A
spokesperson for ECM said that the label tried to contact Newton, but the
flutist had moved and the company did not have a current telephone number.
The label mailed him a check, for a modest amount, the standard fee for
licensing agreements, but it was returned for lack of a forwarding address.

This isn't the first time the Beastie Boys were sued for copyright
infringement related to sampling, nor is it the first time that a rapper has
been sued for sampling. In a 1991 landmark ruling, Biz Markie lost a court
case for sampling Gilbert O'Sullivan's 1977 hit "Alone Again (Naturally)" in
his song "Alone Again." His record "I Need A Haircut" on which the single
appeared, was subsequently pulled from the shelves.

"For my music to be dispelled by the court in this fashion was a very
difficult pill for me to swallow," Newton said.

"It sounds racist to me," Taylor said. "Pure English. Here's a [judge] who's
saying if it's not written in the old European form that I may have heard
about from someone who studied Mozart," it's not a legitimate composition.