A New York judge won’t let the Beastie Boys off the hook in an illegal sampling lawsuit brought by TufAmerica, which owns rights to the musical compositions of Trouble Funk, an R&B group from the ’80s. The copyright infringement lawsuit was brought in May 2012 against various record companies and the Beasties’ Michael Diamond, Adam Horovitz and the late Adam Yauch, who died a day before the complaint was filed.
Nearly a year-and-a-half later, the lawsuit survives, although a close reading of U.S. District Judge Alison Nathan’s ruling denying a motion to dismiss reveals why the defendants should be happy with the outcome at this stage. Although Judge Nathan says there’s enough in the allegations to allow two song samples to be tested further in her courtroom, she dismisses four others. And perhaps more importantly, the judge applies a copyright rule that will limit the defendants’ liability in this matter to just the very recent past.
The Beastie Boys released “Paul’s Boutique” in 1989, and immediately its Dust Brothers’ produced sound collage was hailed by critics. It was widely known at the time that the album contained multiple samples, but all the sources weren’t immediately clear. In TufAmerica’s original complaint, the plaintiff stated that “only after conducting a careful audio analysis” was it able to “determine” that the Beastie Boys had sampled its music.
That allegation raised a provocative issue: If the copying was so minimal as to avoid detection, was the appropriation sufficiently substantial to be deemed an infringement?
TufAmerica tried to avoid this question by amending the complaint to remove the language noted above, but the defendants pushed the judge to view the revision as a revealing admission.
In the end, Judge Nathan says it doesn’t matter. She writes that “the focus of the relevant inquiry is on whether the samples taken from the Trouble Funk songs constitute a substantial portion of the original song; it is not on the audibility or import of the Trouble Funk samples in the corresponding Beastie Boys’ songs.” (emphasis ours)
Having decided that it is irrelevant at this point to figure out whether listeners can discern the samples, she focuses on “whether the protectable elements of the samples are quantitatively and qualitatively significant to the original song.”
She takes a look at six samples at issue and comes to differing conclusions. There’s a one-second sample of the Trouble Funk song, “Say What,” that is used on the Beastie Boys’ “Shadrach,” and even though it’s just a second, the judge notes, “This is not simply a phrase in the song, but rather the title phrase of the song.” In other words, it’s qualitatively significant.
Then there’s a sample from Trouble Funk’s “Let’s Get Small” used on the Beastie Boys’ “Hold It Now Hit It.” The sample accounts for 51 seconds of the original song. The plaintiff conceded that the Beasties took it from the recording rather than the composition, and rather surprisingly, Judge Nathan says she “cannot conclude from the papers before it or the songs themselves that the chord is not copyrightable.”
But that’s where TufAmerica’s victories end.
The judge throws out claims that the Beastie Boys sampled Trouble Funk’s “Drop the Bomb” for three different songs on Paul’s Boutique. One claim was rejected because the sound effect played “often accompanies a visual image of a falling object in cartoons or movies” and doesn’t qualify as being original enough; a second because a three-second drumbeat wasn’t deemed as significant to the original song; and a third (a six-second piece of music) for the same reason.
But the defendants’ biggest score was getting the judge to apply something known in copyright circles as the “injury rule” rather than the “discovery rule.” Each has its advantages and disadvantages for plaintiffs. While it’s easier to bring a claim under the “injury rule” because it allows plaintiffs to bring claims within three years of the latest act of infringement instead of three years from first knowledge of an infringement, it’s less generous on potential damages. TufAmerica can now only potentially collect on infringing acts made after May 12, 2009.
That’s three years before the lawsuit was filed. Paul’s Boutique came out 20 years before that date and one would assume that a good deal of its financial success came when it was freshest. Of course, the album experienced a renewed surge of popularity upon the death of Yauch, who saw neither the postmortem tributes nor this lawsuit. But as “MCA” rests in peace, his bandmates can take solace in the fact that an album that’s reported to have sampled 105 different songs is facing claims on just two of them — and only for very recent exploitation.