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.  


VonLmo

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.

Tzu

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...

clancy

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.

Bill

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.

ahb

If you've been embezzled for 23 years, then finally discover it because you hire an accountant sophisticated enough to uncover the problem, have you suffered economic harm?

Macrobius

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?

Brian Beastie B.

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?

Travis

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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Eric M. Jones.

It was satire. No damages. Go away.

Marty Schwimmer

I think you mean 'metaphysical question' and not 'existential.' Existentialism asks questions about human existence; metaphysics asks questions about the nature of things, which could include intangible things such as intellectual property.

David Leppik

Just to pick a nitpicker's nit: existentialism is about existence: primarily human existence, but not exclusively. But you're otherwise correct. The question is whether something is a copy, not whether or not the alleged copy exists.

James

Wouldn't life be so much simpler if "musicians" would just learn to play the instruments themselves, or even learn to use a sound synthesizer?

RCP

I agree with the general opinion of this post. If sampling cannot be perceived, then it cannot hurt. Additionally, I wonder when these suspicions initially arose and how they arose. What would make someone listen so carefully to a song if they don't know that they are looking for something?

On a broader policy note, I believe that even in situations where sampling is rather obvious, it could possibly have a positive economic effect on the original. I, for one, often find myself listening to music I would have never discovered (using that term loosely) if another artist never sampled it.

Keith

Honestly, I think most samples will do not cause economic damage but may cause economic benefit.

Take the Johnny Cash sample for instance. If I was someone listening to the Beastie Boys song with that sample, that prompts me to think of Cash if I was familiar with the song the sample came from. If I thought that song was cool then I might dig it out of my collection and play it next if I owned it, and if I didn't already own it I might go out and buy it on iTunes or Amazon thus generating revenue for the copyright holder of that song. And if my kid was listening to it too and didn't know who Johnny Cash was, I might tell him/her and play some whole songs for them potentially renewing Cash's audience and providing another benefit to the copyright holder.

The new artists are sampling something because they think it sounds good in their song and will make their work better. Or they are sampling it as an homage to someone they have been influenced by. Either way, it's a compliment telling the original artist, his/her fans, and the sampling artist's fans, "Hey, this thing here that Johnny Cash created is really good. Now see how well it fits into this new context I've just created."

At the very least, I think more of the artists sampled and think that sampling by new hot artist increases the street cred and prestige of the sampled artist when those listening can tell where the original came from. If they can't tell then sampling a song matters about as much to a copyright holder as if, instead, I went out an recorded the squeal of the brakes on my car.

What this all boils down to is that some copyright holders see the possibility of an extra paycheck anytime something they create is used by someone else regardless of whether it harms them, helps them, or has no effect on their interests whatsoever. It's gotten to the point where every almost every copyright holder thinks that what they own is tremendously valuable and that a rights holder should be compensated every time someone even thinks about their product.

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TEK

this is idiotic; there is no reason this suit should be considered. If the samples cannot even be heard/recognized/detected, then what's the problem??? Especially after so many years???

Joe

The Beastie Boys song is Hey Ladies, the sampled song is Hey Fellas. You can listen for yourself on Grooveshark. It is clear to me that the cowbell has been sampled at the very least. How could it take them 23 years to notice? It is also clear that The Beastie Boys were making a parody of Hey Fellas, so this should not fall into the category of copyright infringement.

Michael

James: sampling is waaaaay more than a method of acquiring instrumentation in lieu of playing ability, it is in fact an art form unto itself. And if you listen to Records like check your head or ill communication, you'll hear the beastie boys playing instruments, sampling records, and programming beats on drum machines.

This lawsuit seems to be a late attempt at some cash and not much else.

And the Beasties have always been pretty good n forthright when it comes to sample clearance, even on PB, contrary to popular belief. This SHOULD get blown out of court with ease.

Matt

Trouble Funk could argue that the alternative to the Beastie Boys sampling them with payment would be sampling them with a royalty check, in which case the economic harm is clear. If I build a house illegally using copyrighted blue prints there is no way for the architect to know this has been done, but it harms them economically though lost revenue. And, as the market for sampling becomes larger, value of music for sale to other musician will become more important.

Meredith

No Sleep til Brooklyn! ;)

BK

Now, I could be wrong on this but my understanding was that you had to defend yourself against any copyright infringement in order to be able to make an argument in future cases. In other words, if you let one artist sample your work without compensation or even acknowledgement, then when a future artist does the same, you can't then sue them. The idea being that by allowing such sampling to occur orginally, you are providing tacit approval for future sampling. This is why, again as I understand it, Disney is so protective of its image even with minor things such as kindergartens using their characters as decorations. Its not that they dislike the kindergarten or even object to their use of the characters in that fashion, but they need to retain the right to sue others who do misuse their image, particularly in a harmful way.

Which brings me to the second reason for aggressive copyright enforcement and that is respect for the originator. The intellectual property owner needs to protect their intended use of their material to ensure that it is not misused in such a way as to discredit them or to misrepresent their views. The first issue goes back to Disney...they don't want their image to be associated with cheap knock-offs because that may lead people to assume that Disney makes crappy products without realizing the offending product was not authorized by Disney. The second goes to the issue of "Baracuda" by Hart. When that song was appropriated by the Palin campaign as her "theme song", Hart was rightfully upset that it was being misused without their permission. They did not appreciate their song being used to represent policies that they did not agree with or support and wanted to ensure that it was clear that they opposed those views. I believe both of those reasons are valid reasons for enforcing your intellectual property rights.

So in this case, it would appear that the issue is more of my first paragraph than of the second, that they *must* make a case now to justify future defenses but we shouldn't discount their inherent right to defend themselves based on the second paragraph. Despite the fundamental nature of an economics blog, its not always about money.

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