The Beastie Boys, James Newton, and phonographic orality

One of the most complicated copyright situations covered in my Musical Borrowing class is the landmark sampling lawsuit Newton v. Diamond. “Newton” is jazz flutist and composer James Newton, not to be confused with James Newton Howard. “Diamond” is Michael Diamond, aka Mike D of the Beastie Boys. The song at issue is the Beasties’ “Pass the Mic” (1992).

The flute sample in the intro and throughout comes from James Newton’s piece “Choir” (1982).

If you want to sample legally, you need two separate licenses: one from the owner of the audio recording (typically a record label) and one from the owner of the underlying song or composition (typically the songwriter or composer, or their publisher.) The Beastie Boys got permission to use the recording of “Choir” from James Newton’s label, ECM, and paid a license fee. They did not, however, seek permission from Newton himself. ECM didn’t ask Newton either, and he didn’t even find out about the sample until eight years later, at which point he sued the Beasties for copyright infringement.

The Beasties’ defense was that they only sampled one note of “Choir”, and one note of a composition is not a unique enough musical idea to be covered by copyright. But James Newton argued that he wasn’t just playing a note on the flute; the specific way he performed that one note is so distinctive and personal that its sound is intrinsic to the composition itself. For one thing, Newton didn’t just play C, he also vocalized simultaneously, adding a C to D-flat trill to create intense harmonic friction. He also used a technique called overblowing to make the flute’s harmonics unusually loud and audible. Newton’s notated score for “Choir” didn’t include any of these performance details, but Newton thought that the recording he had submitted to the copyright office conveyed the performance aspect fine by itself.

So the question before District Judge Manella was this: does “Choir”, the musical composition, exist as a notated score, as a performance, or as a sound recording? If “Choir” is a notated score, then the Beasties were right, any single note from that score is too generic to be copyrightable by itself. If “Choir” is Newton’s performance of it, then the Beasties would need to have licensed the composition. (We already know that “Choir” exists as a recording, which the Beasties licensed properly from ECM, that part was not in dispute.) At this point, you might say, who cares about notated scores? If Newton said his composition consists of the performance, it consists of the performance. The problem is that this is not how US copyright law works. Scores and sound recordings are copyrightable, but the non-notated aspects of performances are not. If Judge Manella had ruled in favor of Newton, she would not have been following the law.

What if Newton had included more performance details on his score? What if he had written “sing a C-to-D-flat trill while overblowing” on top of the note in question? Would that be enough to establish his ownership of the note? Judge Manella did not think so. Singing while playing the flute is not unique to Newton, many other people have done it. Overlaying a C and D-flat trill over a sustained C is uncommon, but also not unique. So the abstract idea here is not distinctive enough to be Newton’s exclusive property. The specific sound of Newton executing the idea is certainly distinctive, and the recording of that sound is copyrightable. However, Newton does not own the sound recording copyright; his record label does. This fact might offend your intuition, but it’s the standard arrangement between labels and artists. Few recording artists signed to labels retain ownership of their master recordings. This is why Taylor Swift is paying to rerecord her albums out of her own pocket; she wasn’t able to buy her masters from their current owner, so she is making alternative versions that she does own. 

Anyway, Judge Manella ruled that the copyrightable form of a composition is its score, and that the Beastie Boys did not need Newton’s permission to use a single note from that score. Newton appealed the decision, and the circuit court judge upheld Manella’s ruling. So that was the end of Newton’s lawsuit. But it doesn’t settle the matter for my class. Why shouldn’t Newton own his own flute performance style, just because he didn’t specify all of its precise nuances on paper? It feels wrong. Maybe Judge Manella should have ruled with him. But if she had, and the rule became that recordings are the property of the performers rather than the company that paid to produce them, then that would upend the entire global music industry. You can see why a district court judge might be reluctant to do that with a stroke of her pen.

US copyright law considers a musical composition to be a fixed score with a specific composer. You can submit an audio recording to the copyright office, but they consider that to be a separate piece of intellectual property from the underlying composition, and that canonically exists as a score. This is confusing, because when you register your composition, you can submit an audio recording in place of a notated score. But the copyrightable element is the notatable aspect of the music on the recording, not the sound of the recording itself. This is a subtle distinction!

The idea that music exists as a score created by a single author is a culturally specific and historically recent one, dating back to only about the early 1800s in Western Europe. You can learn about the history of the European “work-concept” from The Imaginary Museum of Musical Works: An Essay in the Philosophy of Music by Lydia Goehr (1994). Goehr argues that before 1800, composers had a status more like skilled craftspeople than like artists. There were composers creating notated scores, but those scores were not considered to be the property of the composers. When a composer of the 1700s like Bach or Handel composed something, the music was owned by whichever prince or duke or archbishop paid them to do it. It was the same situation that composers of film or video game scores are in today: the music was work for hire, the property of the employer rather than the employee.

In the 1700s, there was not much separation between composer and performer. Scores were more like jazz lead sheets; accompaniment was sketched out or not notated at all, and performers were expected to fill in details and embellishments. Bach and his contemporaries also did a lot of improvising. There was little expectation that anyone other than Bach would perform a Bach composition. Also, ownership of music was not exclusive; composers routinely copied from each other, from folkloric sources, and from themselves. (Bach recycled the Prelude to the E Major Violin Partita for two subsequent pieces.) Music was a luxury good made to order, more like a tapestry or a candelabra than like a film or a novel. Pure originality was no more important for composers of Bach’s era than it was for weavers or silversmiths, and composers didn’t control their own music anymore than a silversmith controlled the candelabras they made.

So how did we get from the idea of composers as craftspeople to composers as romantic artists with sole ownership over their work? Goehr explains:

Developments in copyright laws and publication helped ‘institutionalize’ works as commodities separable from their performances. Developments in notation helped free composers from involvement in performance. But these developments only partially account for the extent to which many composers became strategically uninterested in the performance of their works. A deeper source of that phenomenon takes us back to the romantic characterization of the emancipated composer (p. 229).

In 1835, Franz Liszt wrote a manifesto calling for the foundation of a “musical Museum” (which is where the title of Lydia Goehr’s book comes from), an institution that would properly honor and curate the art of music, at government expense. The Romantic concept of the artist was inspired by the rise of the professional middle class. Composers were not just craftspeople, they were driven by “the spirit that refuses to be content with merely earning a livelihood and longs to embark on the high seas of art in search of new discoveries”, as Carl Maria von Weber put it (p. 207). Patrons would (supposedly) no longer be allowed to control composers’ creative output.

Their romantic role willingly adopted, composers enjoyed describing themselves and each other as divinely inspired creators— even as God‐like—whose sole task was to objectify in music something unique and personal and to express something transcendent. Bizet described Beethoven not as a human, but as a God. Samuel Wesley referred to Bach as a ‘Saint’, a ‘Demi‐God’, and a ‘Musical High Priest’, and to his masterpieces as the ‘Works of our Apollo’ (p. 208). 

If a Beethoven composition was meant only to express Beethoven’s inner truth, then of course it could only be Beethoven’s exclusive property. Performers were not allowed to deviate from Beethoven’s scores, because then they were interfering with the pure truth of his expression. And copying pieces of Beethoven’s music for your own purposes was no more acceptable than stealing pieces of his soul.

Jason Toynbee examines the way that audio recording complicates the work-concept in his 2006 article, “Copyright, the Work and Phonographic Orality in Music“.

As the work-concept became dominant in western culture, and then in law, it not only helped to define the nature of music, it also specified the tasks of music makers. Two distinct roles were assigned: composer and performer. Significantly, such a way of conceiving music was enshrined in legislation in the USA at the start of the 20th century. This was the moment when a new reproductive medium, the recording, was beginning to compete with printed sheet music as the dominant commodity in music markets. And intimately connected to the rise of the recording was a new kind of musical culture. We might call it phonographic orality; its most significant style was the blues. Here elements of African musical practice were combined with production methods which depended on recording and listening to recordings. The resulting music was iterative-variative in structure, rather than strongly differentiated as in the case of musical works. More, the author–performer distinction was of negligible significance. Blues records, one might say, were authored in and through performance (p. 78).

Notated scores had originally been a technical tool, a way to preserve musical ideas. As Western European composers began writing longer and more complex pieces, however, notation itself became the medium of their musical creativity. As Toynbee puts it, “notation promoted originality” (p. 81). Once notated scores became complete and detailed sets of instructions, classical performers lost much of their freedom, and they gradually stopped improvising and adding their own ideas. 

James Newton is a jazz musician whose work is richly informed by the Black American vernacular tradition. He also composes and publishes meticulously notated classical scores–you can see them on his web site. Jazz composers occupy an awkward middle ground between the European work-concept and the oral/aural world of the blues. When John Coltrane recorded “My Favorite Things“, he was playing a tune owned by Rodgers and Hammerstein, which we today experience via a recording owned by Atlantic Records. Coltrane’s solos are not notated compositions, so as far as the law is concerned, he is not their “author”. That sentence seems silly even as I’m typing it! Jazz has its notated compositions, like Coltrane’s “Giant Steps“, and you can notate recorded solos, but at its improvised heart, jazz is a form of phonographic orality.

The blues consists of a shared stock of riffs, chord progressions, instrumental and vocal techniques, and lyrical phrases. Jazz has its own stock sounds and phrases, and its core repertoire is a shared body of  standards (including many blues tunes). A song won’t sound like the blues or traditional jazz unless it sounds substantially like many other blues or traditional jazz songs. Blues and jazz musicians have their own distinctive sounds, but there is no expectation of being purely original; quite the opposite! This all poses serious problems for musicians who want copyright protection. Toynbee again:

As originally drafted, the US Copyright Act of 1909 had not recognized sound recordings as capable of attracting copyright. It was not until 1971 that the Act was amended (Sound Recording Amendment Act 1971 (US)) by the addition of section 1(f), which recognized that ‘sound recordings’ were protected by a form of copyright: ‘Any person entitled thereto… shall have the exclusive right… [t]o reproduce and distribute to the public… reproductions of the copyrighted work if it be a sound recording…’. However, this section made clear that ‘the exclusive right of the owner of a copyright in a sound recording to reproduce it is limited to the right to duplicate the sound recording in a tangible form that directly or indirectly recaptures the actual sounds fixed in the recording.’ As if to emphasize this point, it proceeded to state that ‘this right does not extend to the making or duplication of another sound recording that is an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording’. Here, then, the ‘recording’ as a matter of law was simply that which was registered by the phonographic apparatus. More, the choice of words specifically excluded rights in any symbolic pattern which might be taken to exist behind the particular sounds of the recording. One could freely imitate recorded sound – whereas to imitate a musical work would of course infringe copyright. Sonority could not be owned (p. 86).

The specifics of a performer’s groove and timbre are legally considered to be aspects of their performance, not an act of authorship that can be protected by copyright. Toynbee says that Newton lost his lawsuit because he was unable to get the rules that apply in the world of European-descended art music to apply to an expression of Black orality. 

Toynbee ends his article on a cynical note:

When openness is appropriate, as in the case of the blues, corporate copyright owners will be open. At other times, as with hip hop and sampling, they will close down creative options in the interests of trade. In all circumstances they will collect. To change this situation we may need to abolish capitalism, but that is probably beyond the scope of the present article (p. 97).

My students’ final assignment is to write a new US copyright law. Their job is to create new rules that balance protection for previously unprotected forms of expression with enough openness to enable creative sampling, quotation and reinterpretation. This is not an easy task! I look forward to seeing what they come up with.