A Musician Writes It, A Rapper Borrows It: A Swap or a Theft?

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

--”Pass the Mic” by the Beastie Boys

The embittered jazz musician calls it rhymin’ and stealing. The shocked rappers argue that it’s about a minor player manufacturing a musical controversy.

Either way, James W. Newton Jr. vs. the Beastie Boys is the latest example of hip-hop artists getting grief from musicians who view rap song collages as artistic shoplifting.

The heart of the matter is the Beastie Boys’ song “Pass the Mic,” which has a willowy, elongated flute sound rising above its cluster of rock instruments, breakbeats and turntable scratches. The exotic sounding tidbit, looped more than 40 times during the Beastie’s track, is a six-second, three-note performance that the Beastie Boys clipped out of a 1982 recording called “Choir,” a song written and performed by Newton, a professor at Cal State L.A. and former Guggenheim fellow.

Ten years after Newton released “Choir,” the Beastie Boys released “Pass the Mic” on their acclaimed hit album “Check Your Head.” Another eight years would pass, however, until Newton became aware that his impressive jazz resume now included a collaboration with the clownish but creative New York trio.

“I felt violated,” Newton recalled this week. Newton found out when one of his jazz ensemble students casually mentioned that he had noticed Newton’s name on the Beastie Boys album. Newton was skeptical until the student brought the CD to class. Then he was livid.

Samples of music, of course, are a hip-hop staple, and the Beastie Boys have always sprinkled their compositions with prerecorded music both famous (Rolling Stones, Led Zeppelin, etc.) and ridiculously obscure. Like other major hip-hop artists, though, the Beasties spend a considerable amount of time and money securing clearances for the music they sample.

So why was Newton upset, unaware and eager to sue? The answer involves the nuances of U.S. copyrights on composition and recorded performance as well as the fundamental importance of leaving a forwarding mailing address.

Newton’s record label, ECM Records, tried to reach Newton in 1992 when the Beasties called to seek clearance on “Choir,” but the musician had moved. Newton’s contract with the label gave the company the authority to license out the recording and, a short time later, a check for $500 was mailed by ECM to Newton but came back as undeliverable.

Newton remained oblivious while the Beasties assumed they had taken care of the matter.

Newton and his attorney, however, argue that the Beastie Boys only did half the job. The group secured the sample as a recorded performance but they did not secure clearance for it as a composition. In basic terms, the performance clearance is for a musician’s work, while the composition clearance is for the handiwork of the songwriter.

In the case of “Choir,” the performer and composer is Newton, and via the copyright infringement lawsuit he filed in 2000 he claimed the Beastie’s did not give him his due.

Proper Clearance

The Beastie Boys disagreed--they said the snippet was far too short and too simple to be regarded as a protectable piece of musical work. “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,” Adam Yauch of the Beastie Boys said this week. “If one could copyright the basic building blocks of music or grammar then there would be no room for making new compositions or books.”

In May, U.S. District Court Judge Nora M. Manella agreed with the hip-hop stars and said the performance clearance secured by the Beastie Boys was appropriate for a shard of music that was “unoriginal as a matter of law.”

Newton’s attorney, Alan Korn, is readying an appeal now. He says Manella’s decision is a chilling one for avant garde jazz, electronica and other genres where traditional notation and song structure do not lend themselves to easy analysis and charting in a courtroom.

A legal defense fund has been set up for Newton, who is also the conductor of the Luckman Jazz Orchestra, and a number of musicians and their organizations have spoken out on his behalf. The media coverage of the case to date has rankled the Beastie Boys who believe they have been portrayed as overbearing thieves looking to exploit a jazz academic. For a group accustomed to political and social advocacy and a well-known dedication to charity, it has been especially frustrating.

“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,” Yauch said. “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.... Mr. Newton’s flute sound is just one of hundreds of sounds in our song. Giving him 50% ownership of our song seemed unfair.”

The calculus of music creation is a common but tricky practice. There have been landmark cases involving rap sampling--most notably, Biz Markie’s loss after using “Alone Again” as the core of a song--and its not unusual for sample-minded artists, such as Sean “P. Diddy” Combs, to split the profits of a song that hangs its hat on a previous work.

To Newton, “Choir” is a “defining presence” in the Beastie Boys song that borrows it. To Yauch it is “a drone in the background” that has “nothing to do with the central theme of our song.”

Either way, “Pass the Mic,” remains a Beastie Boys favorite, popping up in their remixes, their live performances and a recent DVD release. All of it infuriates Newton who also has to swallow the fact that his “Choir”--which he composed as an ode to the spiritual music that inspired him as a youngster--has also made a cameo in the puerile “Beavis & Butthead” television series thanks to the show’s use of “Pass the Mic.”

“This is a work that celebrates God’s place in the African American struggle for freedom in this country,” Newton said. “And, for me, this has become a nightmare.”