Blog Post

Rhyming & Stealing: Let’s honor late Beastie with better copyright laws

Hip-hop icon Adam Yauch (MCA) of the Beastie Boys passed on Friday, leaving a legacy of advocacy and great music.

The albums of Yauch and his band taught suburban kids about malt liquor and dust, but were also a wizardly pastiche of music and culture — from Sly & the Family Stone to Mr. Ed to Alfred E. Neuman.

The Beasties were pioneers of remix culture, drawing on sound samples to share hundreds of references in a single album.

They also become reluctant pioneers in a series of copyright lawsuits. In one case that went to the Supreme Court, the Beasties were sued over a few seconds of flute music even after they paid to use it.

Scholars have recently questioned whether the band could even have made their landmark 1989 Paul’s Boutique album today. The increased cost of the samples and the cumbersome process to clear them means producing Beastie Boys style music has become impossible from a legal standpoint — even as it gets easier from a technological one.

Congress and the music industry could fix this problem by creating a quick and low-cost system for clearing samples. The current system (as the Beasties pointed out in this worthy Wired interview) is tedious and  loaded with lawyers and other intermediaries.

The law should also restore a de minimus defense for short samples and rewrite the oppressive statutory damages regime that can make a single copyright offense punishable by $150,000.

Good law should reflect and support quality artistic culture — not oppress the people who create that culture. In 1998, Congress passed a hideous law to honor mediocre musician Sonny Bono.  It should use MCA’s passing as an occasion to correct that mistake and honor a truly great musician instead.

13 Responses to “Rhyming & Stealing: Let’s honor late Beastie with better copyright laws”

  1. “the Beasties were sued over a few seconds of flute music even after they paid to use it.” I do believe they were sued b/c they didn’t pay for use of the music contained in the recorded sample. Two different copyrights.

  2. While a more efficient, streamlined licensing and rights-clearing process is something I think most people could agree upon, I am also looking forward to the day when artists feel more comfortable about the boundaries of fair use and can rely on the fact that, in many cases, when they borrow small pieces of others’ work to accomplish a new artistic purpose, they have therefore transformed that copyrighted material and are protected by fair use.

    The growing proliferation of fair use “best practices” guides and the growing tendency of judges to accept “transformative use” as the touchstone for fair use analysis will be helpful in this regard.

    While of course some artists would prefer to clear samples and not risk legal liability (something that the Beasties in fact actually did with the samples on Paul’s Boutique, for the most part), I would argue that the samples on Paul’s Boutique are clearly used for a different underlying purpose (i.e. postmodern pastiche/collage rather than the purposes of the underlying works sampled). (This is of course an ideal example of “transformativeness” – things are much murkier when an artist uses the “heart” of a prior work as the entire underlying portion of a song with no intent to parody, comment, critique, etc., instead merely freeriding on the creative work of another).

  3. As a publisher who has spent his life creating copyrighted materials I wish I could be on the side of copyright in this conversation. But I think the author makes a great point. We need a simple system for users to borrow and reference others work in the digital era–without layers of lawyers or other intermediaries.
    Theft remains theft but in earlier eras a great deal of progress in science and art occurred due to theft. Essentially blues, folk, and rock ‘n’ roll of the ’50s were built on judicious of lifting from black and Appalachian musicians of earlier eras. American industry in the 19th century stole from the UK as readily as Chinese manufacturers copy us today.
    What we really need is clearer, more consistent copyright law, not more draconian punishments for infractions. And we need to keep in mind that the goal of copyright law is always not to make sure that creators get rich, but that they are incentivized just enough to keep on creating.

  4. William Beem

    As someone who creates copyrighted content, I’m really bothered by your perspective on this issue. Like many other people, you seem to think that anyone should have the right to pick apart the works of others to use as they please, without any regard to the wishes of the person who created it. Further, you want to eliminate the legal protections we have to protect our works, essentially making copyright privileges impotent.

    Those of us who create have a simple question. Why can’t you create something unique or your own? Learn to play an instrument. Learn to paint. Learn to photograph. Be unique. Be original. If you want to use something, that’s OK if you’re secured the rights & permissions, but doing so is a business deal between two parties, and should not be subject to limitations by law on what fee gets set for the transaction.

    • Thanks for your comment, William. With respect, as a writer, I do create something unique.

      I am not calling here for the elimination of copyright (something I favor and that benefits me in the same way as musicians). I’m just suggesting that the current copyright regime is flawed.

      Do you really believe copyright terms of life + 70 years are wise or that $150,000 statutory damages are necessary?

      • I am currently involved in a copyright infringement suit where a company manufactured and made available for distribution numerous studio and live albums without ever paying a penny to the Artists.
        So, in some cases statutory damages of up to $150,000 per infringement are not only necessary,I feel that $150,000 is not enough.

      • TNlawguy

        Mr. Roberts: Your comment in both your article and your reply to Mr. Beem infers that the statutory damages of $150,000.00 is the only remedy a court can award a plaintiff whose work has been infringed. That is misleading at best. It is a RANGE of statutory damages: $750.00 to $150,000.00 per infringement are the available statutory damages and are set at the discretion of the court. And, yes, when an infringement is egregious enough (willful, knowing, repeated), $150,000.00 is entirely appropriate.

        As for the duration of copyright, yes, life of the last surviving author plus 70 years is appropriate given that the Copyright Act provision on termination of transfer is finally coming into effect the original authors (or their heirs) will finally have the opportunity to get their copyrights back and completely benefit from them.

        As for licensing samples the article also is misleading in that what is in a sample can be reproduced provided statutory royalties are paid. No, it is not taking from the source, but that’s the point. If the work is original the Copyright Act provides that for sound recordings the creator need not secure a mechanical license from the owner of the musical composition, but can instead secure a compulsory license provided the composition has previously been distributed to the public for a private use (a so-called “first use”).

        People who use someone else’s works to create something “new” should secure the appropriate rights to do so. While I am not opposed to a more convenient method to license copyright -protected works, your approach is throwing the baby out with the bathwater.

        The common approach by creative folks (and I am one and have worked with them for over 35 years) is to do everything backwards. They most often create, release and then seek a license. If they approached the process professionally most of the time the problems you mention would not exist.

    • Everyone creates copyrighted content. Everyone creates. Under US law, something is copyrighted as soon as it is fixed, whether or not it has commercial purposes. I assume you mean that you make your living from selling works that you’ve created.

      Yes, the creators of works do not, and should not, have sole authority about how their works are used once those works have been published. That’s part of the bargain we make in copyright- there are exemptions to copyright for societal benefit, with the ultimate destination of the public domain. That’s not to say that people can do absolutely anything they want with the work- there are certainly uses that are wrong and unfair.

      The act of creation often involves use or inspiration from other existing work. To pretend that there’s no creativity in copying is akin to saying that there’s no creativity in photography. There can be a great deal of creativity in each. Was Paul’s Boutique or Licensed to Ill uncreative because of sampling? No.

    • Good point, although current copyright works are outdated and vague resemblances are fought in court. If all industries were as anal as the music one, we wouldn’t have the innovation we have now.

      • Please tell that to Google and Oracle who are fighting over copyright and patent ownership right now. Maybe you should explain to them how innovative they could be w/o these outdated laws, let me know how that turns out