The Beastie Boys Lawsuit: An Existential Question About Intellectual Property

The day before Beastie Boy Adam Yauch’s untimely death from cancer, a lawsuit was filed in New York accusing him and his bandmates of illegal sampling. What’s unusual about this case is that the samples in question supposedly appeared on the 1989 album Paul’s Boutique. An obvious question is why almost 25 years went by before anyone decided to sue. 

The reason?  The alleged samples can’t actually be heard by the ordinary listener. Which raises a kind of existential question about intellectual property. If no one can tell that something is copied, is it still illegal to copy it? And if so, why?

Let’s assume for the sake of argument that the samples in question exist. They are snippets of songs by Trouble Funk, a 80s era go-go band. Trouble Funk’s complaint declares that the way the Beastie Boys sampled the tracks “effectively concealed to the casual listener” the fact that they are samples at all.  And it was “only after conducting a careful audio analysis” that Trouble Funk even knew for sure that they had been sampled. 

Trouble Funk does not seem to think this matters. But our legal system restrains copying for a very specific economic reason: because copying is thought to undercut the market for the original and, as a result, destroy the incentive to create. Concern for the originator’s incentive to create is the justification both for copyright law’s ban on unauthorized exact copying and its prohibition on unauthorized inexact copies made in the production of what copyright refers to as “derivative works” – that is, works that use bits and pieces of a copyrighted work in some way, but often don’t copy it wholesale. A lot of sampling falls into this second category.

You might question whether any brief sample incorporated into a very different song could have this economic effect. But that is a broader question for another post. For the moment, let’s assume that samples are generally harmful to originators, and therefore require a license to use. But can the same be said about samples that no one can hear? No. If it took Trouble Funk 23 years and a sophisticated analysis to even figure out that they were copied, then it is hard to see how that copy in any way caused them economic harm.  


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  1. VonLmo says:

    Coincidence? The fact that Yauch was on his death-bed had nothing to do w the suit, did it?? Somebody waited till the right-moment, I think.

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  2. Tzu says:

    Good post, I largely agree. But here’s the follow up question: should evidence of economic harm be a part of every case of alleged copyright infringement? Right now its assumed, but evidence to the contrary is starting to mount up (look up author Paulo Coelho and his promotion through The Pirate Bay for one recent example).

    Lots of things rest on the assumption of economic damage by copyright infringement…

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  3. clancy says:

    Can it also be a coincidence that they waited until copyright law (and the interpretation and general attitude towards copyright law by judges) has become much more strict and favorable to copyright holders? This probably would have been laughed out of court in 1989.

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  4. Bill says:

    Actually, isn’t the lawsuit a nuisance suit for another reason? Legal precedent regarding compensation for sampling recorded music was decided in 1991 and was set up on a going-forward basis, so the first two Beastie Boys albums are grandfathered in.

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  5. ahb says:

    Hidden due to low comment rating. Click here to see.

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    • Macrobius says:

      An incredibly unenlightened argument. In the act of embezzlement it would be clear that you have suffered real depreciation in a financial sense. Somebody took your money under terms that were illegal.

      The article argues, quite clearly, that it’s questionable to insinuate that unheard samples in a song which can’t be heard by the listener warrant claims of infringement.

      If I slip your secret recipe into my product in a diluted form and then proceed to sell my product, am I infringing on your patented formula even though nobody can associate the taste of my product with the taste of yours?

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  6. Brian Beastie B. says:

    What are the components of a copyrighted song?

    1) Musical notes
    2) Sound effects
    3) Vocals
    4) Samples comprised of all the above

    The Beastie Boys used a lot of things like that, many of which were very recognizable, including works from Johnny Cash and others: MCA: “I shot a man in Brooklyn…(Cash sample: Just to watch him die…”

    I don’t even see how Johnny Cash can make a claim against the Beastie Boys for “sampling” one snippet of a song which was more of an homage than a blatant rip-off. So Trouble Funk is just dreaming if they think they’re going to convince a jury that unrecognizable samples matter.

    If a famous jazz player plays a copyrighted song and I sample one note from it, did I infringe his copyrighted work? How about two notes? Three?

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  7. Travis says:

    The idea that “sampled” music has any impact on the market for the original is 95% of the time ridiculous.

    If a musician samples a movie, is the fact that a track features one line from a movie going to, in any way, impact the market of that movie?

    But even under current law, if there’s no way to tell something is a copy to the average user, then it shouldn’t be considered a copy. If it’s undetectable to the naked ear, then I think there’s no contest. The question this might raise, or the argument TF might make is that software copying can be indistinguishable to the average user, as long as the presentation is different.

    But regardless, our whole copyright system is pretty laughable. No one knows what is going on. It was created in an era when publishers were worried about printing presses being able to reproduce their books. The world has moved on though. In fact, many useful inventions have come from technologies that enable easy copyright infringement, going all the way back to the printing press. Trying to legislate around technological advancement is very backward minded.

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  8. Eric M. Jones. says:

    It was satire. No damages. Go away.

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