Music Business Case Study

CASE 1

SUMMARY:

Luther Campbell (“Campbell”), professionally known as Luke, is the credited author of the song “Its Your Birthday.” The song was first released on July 7, 1994 on the Luke record, Freak for Life. “Its Your Birthday” later appeared on several albums released by Campbell’s record company, Luke Records, which have sold in excess of 1,500,000 copies.

Plaintiff assertes that the defendants’ rap song “In Da Club” infringes on its copyright for its rap song “Its Your Birthday.”

Complaining Work

Luther Campbell “Its Your Birthday”

LINK NOT ACTIVE YET

Defending Work

Curtis James Jackson aka “50 Cent”

“In Da Club”

LINK NOT ACTIVE YET

ISSUE TO DECIDE:

Does Curtis James Jackson’s aka “50 Cent” unlicensed uses of material from “It’s Your Birthday” constitute copyright infringement?

CASE 2

Summary:

Vargas composed Bust Dat Groove in 1993 and registered the musical work for a copyright on January 27, 1995. The registration certificate describes Bust Dat Groove as “Music-Drum Rhythm/Drum Loops.” Bust Dat Groove is a one-bar percussion pattern. Percussion patterns are background rhythm that accompany pitched instruments supplying the melody and harmony in musical compositions. Percussion patterns are not played on their own and are rarely distributed as popular music.

Although the Bust Dat Groove recording runs approximately one minute, it consists of an identical drum pattern looped twenty-seven times. The composition contains a high-hat (cymbal), snare drum and bass drum as its basic elements. Plaintiffs contend that the high-hat and snare drum elements are original, because Vargas used “creative choices in selecting and combining these musical elements in Bust Dat Groove.” (Finally, the bass drum element “consists of two basic three-note groups-one beginning with what is known as a pick-up note on the downbeat, the other containing a ‘short-long-short’ note figure.”

Plaintiffs’ also allege copyright infringement of the sound recording of Bust Dat Groove, owned by Roberts. Later, Roberts registered the sound recording in 1995.

ISSUE TO DECIDE:

Does Celebrex’s unlicensed use of Bust Dat Groove constitute copyright infringement?

Complaining Work

Ralph Vargas and Bland-Ricky Roberts

“Bust Dat Groove Without Ride”

https://blogs.law.gwu.edu/mcir/ (click See All Cases, then search for their names)

Defending Work

Brian Transeau, et al.

Advertisement for Celebrex

https://blogs.law.gwu.edu/mcir/ (click See All Cases, then search for their names)

CASE 3

Summary:

The plaintiff and appellant in this case, James W. Newton, is an accomplished avant-garde jazz flutist and composer. In 1978, he composed the song “Choir,” a piece for flute and voice intended to incorporate elements of African-American gospel music, Japanese ceremonial court music, traditional African music, and classical music, among others. According to Newton, the song was inspired by his earliest memory of music, watching four women singing in a church in rural Arkansas. In 1981, Newton performed and recorded “Choir” and licensed all rights in the sound recording to ECM Records for $ 5000. The license covered only the sound recording, and it is undisputed that Newton retained all rights to the composition of “Choir.” Sound recordings and their underlying compositions are separate works with their own distinct copyrights.

The defendants and appellees include the members of the rap and hip-hop group Beastie Boys, and their business associates. In 1992, Beastie Boys obtained a license from ECM Records to use portions of the sound recording of “Choir” in various renditions of their song “Pass the Mic” in exchange for a one-time fee of $ 1000.

(Links to an external site.)Links to an external site.

Beastie Boys did not obtain a license from Newton to use the underlying composition.

The portion of the composition at issue consists of three notes, C – D flat – C, sung over a background C note played on the flute. When played on the sound recording licensed by Beastie Boys, the segment lasts for approximately six seconds. The score to “Choir” also indicates that the entire song should be played in a “largo/senza-misura” tempo, meaning “slowly/without-measure.” Apart from an instruction that the performer sing into the flute and finger simultaneously, the score is not further orchestrated.

The dispute between Newton and Beastie Boys centers around the copyright implications of the practice of sampling, a practice now common to many types of popular music. Sampling entails the incorporation of short segments of prior sound recordings into new recordings. The practice originated in Jamaica in the 1960s, when disc jockeys (DJs) used portable sound systems to mix segments of prior recordings into new mixes, which they would overlay with chanted or ‘scatted’ vocals. Sampling migrated to the United States and developed throughout the 1970s, using the analog technologies of the time. The digital sampling involved here developed in the early 1980s with the advent of digital synthesizers having MIDI (Musical Instrument Digital Interface) keyboard controls. These digital instruments allowed artists digitally to manipulate and combine sampled sounds, expanding the range of possibilities for the use of pre-recorded music. Whereas analog devices limited artists to “scratching” vinyl records and “cutting” back and forth between different sound recordings, digital technology allowed artists to slow down, speed up, combine, and otherwise alter the samples.

Pursuant to their license from ECM Records, Beastie Boys digitally sampled the opening six seconds of Newton’s sound recording of “Choir.” Beastie Boys repeated or “looped” this six-second sample as a background element throughout “Pass the Mic,” so that it appears over forty times in various renditions of the song. In addition to the version of “Pass the Mic” released on their 1992 album, “Check Your Head,” Beastie Boys included the “Choir” sample in two remixes, “Dub the Mic” and “Pass the Mic (Pt. 2, Skills to Pay the Bills). ” It is unclear whether the sample was altered or manipulated, though Beastie Boys’ sound engineer stated that alterations of tone, pitch, and rhythm are commonplace, and Newton maintains that the pitch was lowered slightly.

Newton filed the instant action in federal court on May 9, 2000, alleging violations of his copyright in the underlying composition, as well as Lanham Act violations for misappropriation and reverse passing off. The district court dismissed Newton’s Lanham Act claims on September 12, 2000, and granted summary judgment in favor of Beastie Boys on the copyright claims on May 21, 2002. The district court held that the three-note segment of the “Choir” composition could not be copyrighted because, as a matter of law, it lacked the requisite originality. The court also concluded that even if the segment were copyrightable, Beastie Boys’ use of the work was de minimis and therefore not actionable. Newton appealed.

This appeal raises the difficult and important issue of whether the incorporation of a short segment of a musical recording into a new musical recording, i.e., the practice of “sampling,” requires a license to use both the performance and the composition of the original recording. The particular sample in this case consists of a six-second, three-note segment of a performance of one of his own compositions by plaintiff, and accomplished jazz flutist, James W. Newton. The defendants, the performers who did the sampling, are the members of the musical group Beastie Boys. They obtained a license to sample the sound recording of Newton’s copyrighted performance, but they did not obtain a license to use Newton’s underlying composition, which is also copyrighted.

ISSUE TO DECIDE:

Does The Beastie Boy’s unlicensed use of the musical performance known as “Choir” constitute copyright infringement?

Complaining Work

James W. Newton

“Choir”

Defending Work

Beastie Boys

“Pass the Mic”

https://blogs.law.gwu.edu/mcir/ (click See All Cases, then search for their names)

BUSE 135 2/20/19

Assignment II – Infringement Opinions

Task

Purpose

Audience

Tone

Structure

Case study (report)

Examine a situation

Identify positives and negatives

Make recommendations

Professionals – not always academics

Politicians

Public

Factual

Authoritative

Concise

Easy to follow

Numbered headings

Table of contents

Executive summary

Due Date: 3/6/19 @ 3:30pm

Objective: Gain an understanding of the process of evaluating copyright infringement claims related to music and sound recordings and the issues involved in deciding a case.

Submission: Attach your assignment as a .pdf file to the assignment link.

Format: Case study (see above) in the form of a pseudo legal opinion. 750 – 1000 words, double-spaced, Times 12pt. font, must be a .pdf file

Description: This assignment will require you to determine the outcome of a series of copyright infringement claims and demonstrate your knowledge of the process of litigating an infringement case. There are three cases to evaluate for this assignment. The cases are presented as pages within folders.

Instructions: Read the summary provided for each case. Listen to the plaintiff’s and defendant’s works using the links provided.

Write an opinion for each of these cases as the presiding Judge in summary judgment. At a minimum, you must address each of the following elements in your opinion for each case:

· Establishing Ownership

· Access

· Similarity (Substantial or otherwise)

· Remedy

Be as specific as you can about what is at issue in each case in terms of ownership. Is the plaintiff’s work lyrical, musical, a sound recording, or all three? Most importantly, you must find in favor of the plaintiff or the defendant based on one or more of the elements above, the plaintiff’s claim and the possible defenses to the claim. Your opinion must also include a remedy.