Bad Lawsuit, Worse Timing: Beastie Boys Sued Over Infringing Samples On Seminal Albums

from the well-that's-just-goddamn-lovely,-isn't-it? dept

Well, this is just sad. When we reported the unfortunate news of Adam “MCA” Yauch’s death, we pointed to the EFF’s call for an appropriate tribute to the beloved artist: an end to the legal war on sampling. The Beastie Boys produced some of the earliest sample-based music—including their seminal Paul’s Boutique, widely seen as one of the best and most influential albums ever—just before the courts started coming down hard on sampling, more or less entirely tossing out the concepts of fair use, transformative work and de minimis copying that should protect samplers in many cases. Most experts agree that, today, an album like Paul’s Boutique could never be officially released, since licensing the hundreds of samples used would cost exorbitant amounts—but that hasn’t diminished the album’s importance, nor has it stopped countless producers from continuing to work with unlicensed samples and release their work as bootlegs. In other words, the law does not match reality: sampling is a valid and vital form of creativity that can and will continue, even though nowadays it’s either impossibly pricey or just illegal. What better tribute could there be to one of the fathers of sample-based music than to finally officially legitimize it as the important (and amazing) art form that it is?

Instead, we get the opposite. AllHipHop reports that, in a bout of incredibly unlucky timing, music label Tuf America filed a copyright lawsuit against the Beastie Boys the day before Yauch’s passing. At issue are samples from Licensed to Ill and Paul’s Boutique, which Tuf America claims were taken from a handful of their songs.

Tuf America said they did a thorough sound analysis of the tracks in question and concluded that the Beastie Boys illegally incorporated elements of the songs without permission.

To complicate the matter, Tuf America claims The Beasties and Capitol Records continue to profit off the album, by way of anniversary and commemorative releases of Licensed To Ill and Paul’s Boutique, which was released in 1989.

Tuf America is seeking a trial to determine the amount of punitive and exemplary damages, if any.

One would think that the simple fact that a “thorough sound analysis” was necessary means this is clearly a case of transformative work, but unfortunately, as mentioned, the courts have pretty much completely eliminated that defense when it comes to sampling. Moreover, where has Tuf America been this whole time? The Beastie Boys albums came out in 1986 and 1989, and now, a quarter-century later, Tuf America is claiming they deserve a payout? Their legal argument will, by necessity, rely on significant rulings that came out after the albums, which were released under the common sense assumption of the time: that sampling was creative and transformative art that didn’t require a license.

The timing here is almost certainly just bad luck, and Tuf America must be rather worried about the PR nightmare this will surely incite. However I can’t say I feel that bad for them: even setting aside Yauch’s death, I find their actions despicable. They are attacking a piece of classic art just to cash in on someone else’s success. If the Tuf samples were really so integral to the success of the Beastie Boys albums, then they would have had plenty of opportunities to capitalize on that over the last two decades. Instead they chose a legalistic get-rich-quick scheme. Shameful.

Last month, when 50 Cent was sued over a sample on a free mixtape he released, I asked when hip-hop’s biggest stars will start speaking up about copyright and educating their fans about the fact that the music they love and respect is, in the eyes of the courts, illegal. This new incident might just kick off that process—nobody is going to be happy about what Tuf America is doing, and a lot of people who had no idea that sampling is illegal are going to see the coverage of this lawsuit (which is sure to be far greater than for your average sampling lawsuit) and discover just how broken the law is.

I truly hope this confluence of events can kick-start the necessary momentum to start fixing copyright law and getting the courts to recognize the validity (and fair use/transformative aspects) of sampling. This is not about capitalizing on Yauch’s death—he and the Beastie Boys helped open the world’s eyes to a rich and unique new approach to music that informed everything that came after, with samples finding their way into countless genres beyond hip-hop and becoming, essentially, an exciting new instrument that musicians everywhere started teaching themselves to play. The introduction of sampling was as important as that of distorted guitars or electric keyboards, and changed music just as much—but since day one, legal respect for sampling has been in steady decline and is now virtually zilch. It would be a wonderful thing if, amidst the tragedy of Yauch’s death, we were able to help him give the world one more gift: a new attitude about sampling that will allow the next generation’s Beastie Boys to pursue their artistic ideas without fear of being randomly sued 20 years later.

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Companies: capitol records, tuf america

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Comments on “Bad Lawsuit, Worse Timing: Beastie Boys Sued Over Infringing Samples On Seminal Albums”

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Mike Masnick (profile) says:

Re: Re: Re:

There is a statute of limitations, but the clock doesn’t start until the infringement stops. In other words, until the albums are actually no longer available for sale anywhere, they are still liable for infringement.

Arguments could (and I suspect, will) be made that the lack of a lawsuit for all this time was tacit acceptance and a failure to minimize the “harm.” Either way, I’d imagine they may only be able to go after recent infringement, but with massive statutory damages, that may not matter.

Colin S says:

Re: Re: Re: Statue Of Limitations

Without knowing which jurisdiction the action has been filed, it’s not possible to be definitive but in most jurisdictions the Limitation period clock usually starts from when the plaintiff actually or should reasonably have become aware of the infringement. The purpose of this law is to stop plaintiffs “sitting on their hands”. Much will turn on how self-evident the samples are.

Anon says:

It isn’t enough that Adam and Mike just lost their Brother, and the rest of us lost our crazy Uncle that we only got to hear every 5 or 6 years, now this…

LTI, not my favorite Beastie Boys album but sold a gazillion copies. Paul’s Boutique, the album that’s on everyone’s list to bring with them to the deserted island! How could they have gone this long on this earth and not realized that there were samples of their artist(s) on the album.

Tuf, do the good, honorable, thing here and just let it go. We know you didn’t know Yauch was going to die. While it was stupid to bring the lawsuit in the first place, it happened. So now, to protect yourself from artists’ leaving you over this, fans around the world being extremely pissed off at you, and you having to go to court and testify that you Juuuust found these samples. Just drop it. Seriously, let it go.

Trails (profile) says:

We R Thug 4 Life

We keeps it reelz at TufAmerica, with an in yo face fresh attitude. Wez all abouts da musik and making phat beats that r dope n shiznit! We are all about da g thang, unless you have a successful album then we will money grab through copyright law in order to tax your success because that sounds an awful lot like a 4/4 beat on a bass drum which we invented in the early 80s.


Ruud (profile) says:

Wikipedia’s entry on Paul’s Boutique:

Contrary to popular belief, most of the sampling for Paul’s Boutique was cleared, but at excessively lower costs compared to the statutory rates of today.

Extensive sound analysis of any song will reveal a similarity with other songs. The only way to prevent this is to invent new notes and new instruments to play them on for each new song.

Leigh Beadon (profile) says:

Re: Re:

I’ve heard different notions on exactly how many samples were cleared compared to how many weren’t, but the album definitely had both. Also, the fact that the rates were lower was partially that nobody had recognized the value yet, but also because it wasn’t yet clear if sampling would qualify as fair use – and record labels weren’t necessarily eager to push the issue lest a judge declare it to be okay. The two primary rulings that got rid of all the defences for sampling could have easily gone the other way – both were entirely subjective and included some pretty questionable opinions (like the judge’s statement that requiring licenses for all samples doesn’t hamper creativity in any meaningful way). Those cases ruined everything for everyone, and enabled the labels to start charging much higher rates because they now had a pretty solid legal guarantee that nobody could fight back.

Lauriel (profile) says:

Re: Re: Re: Re:

Just because it shares the same root word doesn’t mean it shares the same definition. In your link, it also states that the figurative use of “full of possibilities” has been in use since the 1630s.

Semen is the latin root for seed. We also use seed as an idea, not just in terms of semen, but also plant seeds, the seed of an idea, etc.

Seminar also has the same root word, and has it’s origins as the definition of a nursery or breeding ground.

Both meanings have morphed, like many words. A seed becomes an idea, and a nursery becomes a place where the seeds (ideas) are planted and nurtured (seminar, seminary, etc).

Seminal now can be used, perfectly correctly and acceptably, as “Highly influential in an original way; constituting or providing a basis for further development: a seminal idea in the creation of a new theory”.

Short version: You are both correct. Both meanings are applicable. ๐Ÿ™‚

Anonymous Coward says:

Re: Re: Re:

> Please stop using the term ‘seminal’…
> because yes, it does refer back to semen.

No, it doesn’t. The two words just share the same Latin root. One does not ‘refer back’ to the other.

Umm, actually it does:
1. pertaining to, containing, or consisting of semen.
2. Botany . of or pertaining to seed.
3. having possibilities of future development.
4. highly original and influencing the development of future events: a seminal artist; seminal ideas.

Anonymous Coward says:

I’m a bit baffled that the recent death (under mysterious circumstances that could quite possibly be suicide) of Men at Work’s Greg Ham has gotten so little attention. As you know he and the band were at the losing end of a similar lawsuit in Australia by Larrikin which saw their hit song’s legacy forever tarnished by a despicable late stage cash grab. Greg was deeply upset that his work would forever now be tainted with this false accusation that he “stole” a melody from a goddamn folk song. These types of lawsuits are absolutely contrary to the way real creativity works in the arts. In Greg’s case it might seem that the lawsuit might have been a big part of his untimely death. This whole issue makes me sick to my stomach.

Cory of PC (profile) says:


OK, I do want to say that this might sound wrong, but I do think this is something along the lines of “good” timing… in a sense. Granted it’s still wrong that Tuf America did this right before Yauch’s death, but if somehow the Beastie Boys come out of this with a win, we might be seeing that tribute to Yauch in a form of less (or no) sampling laws, and maybe free samples to celebrate the win. So in a sense, it’s kinda a good thing that this lawsuit came about. If the Beastie Boys win, then there’s that likelihood that some reform to the sampling laws will come out of this lawsuit.

OK I know this isn’t good on how I’m explaining and I know this is coming at a very bad time, but I do like to dig around and try to find something positive out of this. With me reading all about the RIAA’s cases lately and getting my anger up, I think this is kinda a change of pace for me that I noticed that there might be a silver lining to this war between the artists, consumers and corporations. Again, if the Beastie Boys were to win this lawsuit, there is that chance that reform will come out of this case. Of course it’s likely (I won’t say highly since I don’t have that much knowledge about court cases) that Tuf America will lose this case, but there’s always a chance that they will come out of this with a win and there will be stronger regulation on current, or even new, sampling laws. Hopefully we won’t be seeing that anytime soon.

I’ll be keeping my eye on this subject. I can’t recall if I heard a sample from them (or anyone for that matter), so this has gotten my interest and I’ll be supporting the Beastie Boys until the bitter end.

Josef Anvil (profile) says:

I hope they win

I’m actually hoping that Tuf America wins and hits Capitol Records with the statutory fine of $750 – $30,000 per infringement.

Maybe if Capitol Records has to pay $100 million + for the total amount of records they sold that were infringing, they would begin to understand the insanity of copyright law. They’ve OBVIOUSLY cost Tuf America at least $100 million in lost sales.

Who are Tuf America????

Anonymous Coward says:

Mad Men

And in other news, it was just announced that Mad Men has licensed a single Beatles song for use in an episode for $250,000, which is 5 times what the going rate for a song is. Obviously, the Mad Men producers felt they needed the song to evoke an era, but this might give the record companies the idea that they’re not charging enough for licensing now.

Anon says:

“With Yauch?s death on Friday, the timing couldn?t have been worse. Trouble Funk leader ?Big Tony? Fisher tells the Post that he wasn?t aware that the Beastie Boys had even sampled their songs, but knew Tuff City was working on Trouble Funk?s behalf. ?We?ve been signed with Tuff City publishing company over 10 years and they?re pretty much going after people that have been using and abusing our stuff without our permission,? Fisher said.

Even worse, Fisher was unaware of Yauch?s death.

?Wow, I?m sorry to hear that,? Fisher said. ?We toured with the Beastie Boys and I like ?em. They?re good cats. And they really admired the band. I?m so sorry to hear that.?

A representative for the Beastie Boys was away for ?family bereavement? and was unavailable for comment.”

JohnnyChavello says:

Fair use and sampling

You write that courts have “more or less entirely [tossed] out the concepts of fair use, transformative work and de minimis copying that should protect samplers in many cases.”

This is only true with respect to de minimis copying (and even there, only in the sixth circuit), but not at all true with respect to fair use. Fair use’s roots in the common law are as old as copyright law itself. There is no particular type of work (music or otherwise) that is outside of the scope of fair use in and of itself and I don’t know of a single copyright case that would even suggest it.

Leigh Beadon (profile) says:

Re: Fair use and sampling

Hey Johnny – I actually responded to you in the Beasties forum, didn’t notice you’d come here as well ๐Ÿ™‚ I’ll re-paste what I said there:

You definitely have a point here. I was a little annoyed when I read the news and wrote the post, so I was quite forceful in my language – but I still do mean something when I say the courts wiped out fair use in sampling

I’m referring to the bright-line “get a license or don’t sample” ruling from Bridgeport, which clearly struck down de minimis, but was also issued without any analysis of the fair use issue (mainly for procedural reasons). To quote from Jason Mazzone’s book Copyfraud:

An especially troubling consequence of the Bridgeport case is that its bright-line rule??Get a license or do not sample??comes without any analysis of fair use. Because the lower court applied the de minimis standard and found no infringement, it did not consider whether the fair use defense applied. On appeal, the Sixth Circuit panel declined to decide whether the sample at issue was protected by fair use because it wanted the lower court to consider that issue first upon remand of the case. However, after the Sixth Circuit?s decision, the dispute settled. There was, therefore, never a fair use ruling in the case. It is unfortunate that a seemingly decisive decision by a federal appellate court on the lawfulness of sampling comes without any consideration of whether fair use protects sampling.

Here, a difference between the doctrine of de minimis copying and fair use matters a great deal. The doctrine of de minimis copying is a judge-made rule. In the final analysis, it is the prerogative of courts to tailor the doctrine as they see fit. Fair use, however, is a statutory provision that binds judges. It limits, without exception, all the exclusive rights of copyright owners. Some copying from copyrighted recordings is, necessarily, fair use. Because of the procedural history of Bridgeport, however, we never learn if fair use protects the defendants? use of the sample from Funkadelic?s tune. The unsurprising result is that copyright owners (and samplers themselves) treat Bridgeport as standing for the proposition that all sampling is infringement. Even though the Copyright Act protects fair use of all species of copyrighted works, a legal decision on the question of de minimis copying enables copyright owners to assert that there is no fair use when it comes to sound recordings.

Subsequent case law has also not dealt squarely with the fair use issue. Although the Sixth Circuit has decided a slew of additional disputes involving litigation by Bridgeport Music, it has never decided whether sampling is protected by fair use. Another federal court could disagree with the Sixth Circuit and find that the de minimis doctrine applies to sampling. A different court could also find that sampling is protected by fair use. But Bridgeport has cast a wide shadow, and rather than go before a (different) court to test the legality of sampling, producers have instead opted to obtain sampling licenses. While courts have held that fair use applies to compositions, courts have provided no guidance on when sampling from an existing sound recording constitutes fair use. Says Philo T. Farnsworth, the owner of a label that releases sampled recordings, ?We?d love to see a court case or legislation recognize transformative sampling as fair use. As of this moment it seems to exist in a very gray area.?

The industry seems to have shaped itself around Bridgeport, and though most sampling on free mixtapes goes ignored (though 50 Cent was recently sued over one) all commercial stuff gets licensed. Thankfully, as you say, and as Mazzone says, there are still plenty of ways that fair use could be re-asserted in the courts – but at the moment, thanks to the far-reaching implications of Bridgeport, it is effectively toothless when it comes to sampling.

Jesse Townley (profile) says:

This is yet another example...

… Of why the issue of sampling drives me crazy.

I get that “Ice Ice Baby” & “Can’t Touch This” rely on complete melody lines (Queen & Rick James), but smaller samples should be fair use without a question based on the changing of the context of the sample.

I’m showing my age when I admit that it took me years after hearing “Licensed To Ill” & “Paul’s Boutique” before I found even a handful of the original songs. It’s been like an Easter egg hunt- “Oh, that’s from War!” and “Tower Of Power, of COURSE!”

dwg (profile) says:


Yea–unfortunately, word up on this one. Trouble Funk is, as the term’s been used above, seminal. Saw them in DC before I even saw the Beasties. But if they’re backing this suit or even taking a hands-off approach and letting it run its course without objecting, they can expect a COD shipment of all my Trouble Funk vinyl, sent to them c/o Tuf America, whatever Tuf America is.

CEO says:

1) Please wikipedia, “Tuff City” & Aaron Fuchs. The man is the pioneer of the hiphop-sample-lawsuit.

2) “”The Beastie Boys produced some of the earliest sample-based music?including their seminal Paul’s Boutique, widely seen as one of the best and most influential albums ever””

ok -so, before the Great White Pioneering Rappers came along, there was no such Marley Mark, Erik B, Red Alert, and no one had considered stealing the bassline from “Good Times”… Really! And even though Ton Loc and Young M.C. were topping the charts already with sampled music that very year… And the Beasties? Must have been the creative force there… well, because they *hired the same producer* as Ton Loc and Young MC (bold and innovative idea)… because, I mean, there’s no reason to give the DUST BROTHERS any credit… I mean, they only have produced 10X more platinum records that the Beasties… and man, Paul’s Boutique? WIDELY RECOGNIZED. It only took 10 years for people to start buying it.

!#($*)@ that sentence has got to be one of the most ignorant “White Man’s Revisionist History of HipHop” things I’ve ever read

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