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. 

Who Owns Culture?

The question of who owns culture is a big one, especially when products associated with certain cultures or nations turn out to be very popular in the marketplace. Take espresso. In a famous scene from The Sopranos, Paulie Walnuts rants inside a Starbucks-like café as he watches the cash register ring with espresso orders: 

Paulie: The fuckin’ Italian people. How did we miss out on this? 

Pussy: What?

Paulie: Fuckin’ espresso, cappuccino. We invented this shit and all these other cocksuckers are getting’ rich off it. 

Pussy: Yeah, isn't it amazing? 

Paulie: And it’s not just the money. It’s a pride thing. All our food: pizza, calzone, buffalo mozzarell’, olive oil. These fucks had nothing. They ate pootsie before we gave them the gift of our cuisine. But this, this is the worst. This espresso shit.

Pussy: Take it easy.  

Why Is It Easier to Copyright an Unhealthy Yoga Routine than a Healthy One?

You might wonder first how yoga, dating back thousands of years in India, can be copyrighted at all. (Not easily, as we will explain in a moment.) But the question we raise emerges from a very current dispute between two rival yoga studios.

Bikram Choudhury is the founder of Bikram Yoga, a popular chain of yoga studios frequented by celebrities such as Lady Gaga and David Beckham. In Bikram Yoga classes, students enter a room heated to 105 degrees Fahrenheit to perform a set of 26 traditional poses and two breathing exercises. While you might think demand for this would be low, “hot yoga” has made Choudhury very rich. He has a villa in Beverly Hills, and a collection of more than three dozen Rolls-Royces and Bentleys.

Artist Profit-Sharing: Another Example of How California Is Like Europe

How is California more like Europe than the United States? We can think of a few ways, but one of the most interesting involves the rights of artists. As this recent story in the New York Times points out, in 1976 California passed a law that guarantees artists 5 percent of the profits in a later sale of their artwork. In doing so, California copied France and a number of other nations, in which such profit-sharing with artists is required by law. In the rest of the United States, by contrast, artists have no right to the profits a collector might make when they resell their artwork.

From an economic point of view, the California rule is a little strange. As we discussed in a previous post, if I sell my house and in five years it rises substantially in value (an anachronistic example these days, we recognize), I don’t get a cut of the windfall. A deal is a deal.

Can You Copyright a Football Play? Ask Bill Belichick

Just about a year ago we posted about the incredibly innovative game of football. As we described, all of the innovation we’ve seen in football – the spread offense, the zone blitz, the wildcat, and dozens of other offensive and defensive formations, strategies, and counter-strategies – occurs without anyone ever asserting ownership. Rival teams are free to copy new plays, and they do.

It’s not as if ownership would be impossible – existing intellectual property rules might cover at least some football innovations as copyrightable “choreographic works,” or as patentable processes. The fact remains, however, that no one has ever tried to copyright or patent a new play or formation.

Why Is There a Rule Against Poetry Critics Quoting Poetry?

In a recent article, the poetry critic of the New York Times complained that to do poetry criticism right, it’s often necessary to quote extensively from a poem. Indeed, in the case of a short poem, it might be helpful to readers to copy the whole thing. But, the critic said, this can’t be done because it might run afoul of copyright law.

It is true that copyright law prohibits the unauthorized copying of any substantial part of someone’s poem, song, or other work. What does “substantial” mean? Well, in one recent case, a federal court held that rap group N.W.A.’s unauthorized sample of a two-second guitar chord was infringing. The court’s holding was clear: “Get a license, or do not sample.”

Is this a good policy? From an economic perspective, no. Use of a small bit of someone else’s creative work to build a new creative work rarely harms the economic interests of the first copyright owner, because most “derivative” works do not directly compete with the original. In the case mentioned above, no one thought that N.W.A.’s rap song “100 Miles and Runnin’” would lure potential paying customers away from Funkadelic’s “Get Off Your Ass And Jam." (Note: neither song is safe for work.)

The Music Industry Copyright Battle: When is Owning More Like Renting?

A rash of recent news articles (like here and here) have noted that in a little over a year, an obscure provision of U.S. copyright law takes effect – one which allows songwriters and musicians to exercise their “termination rights” and take back from the record labels many thousands of songs they licensed 35 years ago.

So, for example, Boston will be able to take back Don’t Look Back. Gloria Gaynor can repo Love Tracks, and Elvis Costello can reclaim This Year’s Model. Less auspiciously, Kiss guitarist Ace Frehley can reclaim his entire solo album. (The music industry may not mind losing this one.) And every Jan. 1, a whole new crop of artists looking to lay claim to their termination rights will appear.

The music industry, already reeling from online piracy and digital downloads, is fighting back against what they see as the looming loss of their property—and the huge profits that still come from some of these records. Why would Congress create a system where, 35 years after making a record that no one knew for sure would be a hit, musicians could take back control—and profits—over the best-selling songs?

Are Rising Prices a Sign of Health in an Industry?

Or do they signify desperation? This is the question that arose earlier this month in Congress, when the House Judiciary Committee again took up the question of creating copyright protection for fashion designs.

We (really, Chris) testified as the sole opponents to the Innovative Design Protection and Piracy Prevention Act, or IDPPPA, which would for the first time in American history provide a short (3 year) copyright for fashion designs, such as the cut and look of a particular dress or suit. To bolster our argument against the IDPPPA, Chris presented data from the Bureau of Labor Statistics that showed that since 1998 apparel prices in the U.S. had dropped or stayed steady—with one exception. At the very top level, prices rose dramatically in this period—by over 200%. The full testimony and graph can be found here.

How "Patent Trolling" Taxes Innovation

Applying for a patent is expensive. Fees can exceed $25,000, and most applications require at least a couple years of effort. We might expect that anyone considering applying for a patent would be fairly certain of the merits of their case for one. And yet, of the patents granted by the U.S. Patent and Trademark Office (PTO) that are subsequently litigated, 40% are declared invalid in court.

A court’s declaration that a patent is “invalid” means it should never have been granted in the first place, usually because the invention has been done before, or because it’s obvious to anyone familiar with the patent’s particular scientific or technical field. So why do so many people spend so much time and money filing for patents that are ultimately declared invalid?

Can You Copyright a Tattoo?

Former heavyweight champ Mike Tyson is famous for a lot of things, including biting off Evander Holyfield’s ear in a fight. A few years later he got this unusual tattoo on his face, also now famous.

Last week, Victor Whitmill, the tattoo artist who inked Tyson, filed suit against Warner Brothers, claiming they had infringed his copyright in Tyson’s tattoo. Which raises an interesting question: Can you copyright a tattoo?