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What does a rap group best known for the anthem “You Gotta Fight for Your Right to Party” have in common with a highbrow classical and jazz flute player? Nine notes — and a lawsuit. James Newton, a music professor at the University of California at Irvine and an award-winning flautist, was as surprised as anyone when a student inquired about his “collaboration” with the Beastie Boys. Newton shrugged off the bizarre rumor until the student handed him a copy of the band’s 1992 CD, “Check Your Head,” which recently went double-platinum. There in the liner notes was the band’s thank you to those who had “inspired” or “contributed” to the album, including Newton for his 1982 song, “Choir.” Problem was, Newton didn’t recall contributing anything to the group, much less giving permission to use the song he had written and recorded. Enter — who else? — the lawyers. In a case filed last month in federal court in Los Angeles, Newton claims the Beastie Boys lifted (okay, “sampled”) six seconds from his song and repeated it more than 40 times in their song, “Pass the Mic.” Sampling, a common practice in the music industry, involves taking a portion of another’s recording and using it in your own recording. If a car can be “Gone in Sixty Seconds,” as the title of a current Hollywood remake suggests, can a copyright be gone in six seconds? Sure thing, says San Francisco lawyer Alan Korn, a partner with Berchenko & Korn, whose complaint claims the six-second flute solo is the “heart” of Newton’s composition. That will be instrumental in making the case, says Mary Grieco, a partner with Century City, Calif., and New York music boutique Yanny & Grieco. “It’s a qualitative, not a quantitative, analysis. You can’t just count notes,” says Grieco, who has litigated sampling cases for artists, record labels and music publishing companies. Rather, she says, the issue is whether the sample “is so unique and original that it’s an identifiable portion of someone else’s song.” Korn’s position goes even further, claiming that the Beastie Boys “took Newton’s signature sound,” which he says is “as distinctive as James Brown’s voice, John Coltrane’s saxophone or Miles Davis’ trumpet.” That will be a key element in proving Newton’s additional claim for violations of the Lanham Act, which prohibits sampling that confuses listeners about who is actually performing — the original artist or one who sampled the work. The Beastie Boys’ lawyer, Ken Anderson, an entertainment partner with Loeb & Loeb in New York, isn’t talking about the case. But his clients are. Group member “Mike D” (lead defendant Michael Diamond) issued a statement that the band had obtained permission and paid ECM Records (which owns the master recording of Newton’s song) for “all necessary clearances” for the sample. That’s half of the legal equation. Copyright law also requires that one who samples a song obtain a license from the owner of the underlying composition, generally the songwriter or the music publishing company. Sampling cases can be a major migraine for record labels, says David Helfant, head of the music practice at Troop Steuber Pasich Reddick & Tobey in Century City. That certainly appears true in this case; Newton is going after the Beastie Boys, their producer, Capitol Records, Grand Royal Records, Brooklyn Dust Music and Universal Polygram Publishing to the tune of $1.8 million ($150,000 per infringement, with 12 instances alleged). Although performers are required to tell their record company if they are using a sample and to obtain the proper licenses, says Helfant, that doesn’t always happen. “Sampling is a potential Achilles heel for record companies,” he says. “The real horror story is the innocent label that relied on the performers’ representations. The record company didn’t bargain for a lawsuit, but suddenly they’re legally blindsided because someone didn’t get the proper licenses.” Even though the label can point a finger (we won’t say which one) at the performers who were responsible for getting the clearances, the case still has to be properly defended. Says Helfant: “If you’re the label, whether you win or lose a sampling case, at the end of the day it costs you money.”

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