Beastie Boys: I Was Asked to Be Their "Expert Witness"

In the Introduction to these essays, I mentioned that sometimes I might post an essay that’s not about jazz. Here is an experience I had in music, but not jazz, that I hope you will find interesting:

Around the end of October 1987, I got a phone call from a woman who was a lawyer in Manhattan. (At the time I was living in the Riverdale section of the Bronx with my first wife.) She had gotten my name from somewhere, and she told me that the Beastie Boys, the hugely popular white rap group, was being sued. She wanted to know if I would be willing to serve as an “expert witness” on their behalf. We talked a little bit, and I asked her what was involved, what was the time commitment, and so on. She said (I paraphrase), “We are going to have an organizational meeting next week, and I really cannot go into the details of the case over the phone. But I can tell you that this could take up a lot of hours, especially if the case goes to court. And you certainly will be paid for your time.” I asked her what amount I would be paid, and she said, “Usually expert witnesses are paid the way lawyers are, by the hour. But we can't tell you what your price is per hour. You have to tell us.”

She said that she would call me back with some meeting times, and I said that I would tell her my fee at that time. After talking with a couple of friends, I decided to ask her for $200 an hour, and she said that was fine. When I got to the meeting, the lawyer who had phoned met me there, and she took me downstairs to a big room with a table in it. We both took seats. Also sitting around the table were two male lawyers, and another man and woman who were identified as expert witnesses as well. So, if I remember correctly, there were six people, including myself.

We introduced ourselves and I learned more about the other experts. The woman had a degree in musicology. I think she said she had a Ph.D. (as I did), but I don’t remember for sure—maybe she said that she had a Masters and had done most, but not all, of the work towards a doctorate. She said that she made her living as an expert witness in music-related lawsuits. That was interesting. I don’t recall her name, so I’ll call her “the musicologist.” The man introduced himself, and I recognized his name. He was a writer on rock and other types of music. I’ll call him “the rock critic.”

The woman lawyer then summarized the background and the details of the lawsuit: The Beastie Boys had first released a few singles, and then their first album Licensed To Ill came out in November 1986. It was a huge success, and by March 1987 it was the first hip-hop or rap album to reach Number One on the standard Billboard magazine chart. It remained Number One for the next five weeks. Up until this time, rap groups had often “sampled” (used small excerpts) from recordings by other groups, but that practice had not attracted notice. With the success of Licensed To Ill, it became clear that rap was now big business, with big money involved. So the musicians who were being “sampled” started to pay attention.

On October 14, 1987, members of the Jimmy Castor Bunch, a Black band generally categorized as R&B or funk, sued the Beastie Boys for breach of copyright. The reason is that portions of their 1983 recording, “The Return Of Leroy” had been used, that is “sampled,” without permission. (“The Return of Leroy” was co-written by songwriter John Pruitt and the band’s trumpeter, Gerry Thomas. It was a follow-up to “Hey Leroy,” which had been Castor’s first successful recording back in 1966.) The samples appeared on the Beasties’ “Hold It, Now Hit It,” a song on their album. The lawyer played for us the two relevant recordings so that we would compare them. You can hear them both here. Every time you hear a voice say “Yo, Leroy” on the Beastie Boys’ song, that is a recorded excerpt from the Castor Bunch, and the percussion is also taken from Castor’s recording. There were other samples by other artists used on that song and elsewhere on the album, but only one this was being challenged legally.

The lawyers explained that there are two key questions that are always asked in music copyright cases (not only sampling cases):

—Is the excerpt in question from the older song (in this case by the Castor Bunch) something very common, that could be found in many older songs, or is it unique, and found only in this one song?

—Is the excerpt in question an important part of the new song (in this case, the one by the Beastie Boys) or does it pass by in a second or two, being barely noticeable?

The musicologist was clearly experienced, and she calmly asked a few questions. But I noticed that the rock critic was getting excited. He was asking questions like, “What about travel time to attend these meetings? Can we bill you for that? How many hours do you think this case might take?” They said it could be a lot of hours, and that they would pay double for any hours that we had to appear in court. Finally the rock critic said, “Yes, I definitely see that the Beastie Boys are not at fault. That part they borrowed from the Castor recording is nothing much. Why shouldn’t they be allowed to use it?” I laughed inside myself, because it was so obvious that he was adding up in his mind all the money that he could make by defending the Beastie Boys in this manner.

The lawyers explained that at future meetings, in addition to discussing details of the case, we would “role play” as though we were on the witness stand. They would ask us questions from their point of view, and then they would ask the tough questions that we might get from Castor’s lawyers. We all agreed on the next meeting time, and we said goodbye.

But I was uneasy. I felt uncomfortable about the whole experience. As soon as I got home, I talked with my wife, and called a friend or two. Everyone reacted the same way: “Couldn’t the Beastie Boys afford to pay something? I’m sure Jimmy Castor could use the money, and they are way more successful than he ever was.” The next day I was at a party in somebody’s backyard, and my friend Steve Rowland (he is now a two-time Peabody Award-winning radio producer) was there, so I asked his opinion. Immediately he said (I paraphrase), “Do you really want to be on the wrong side of this fight? Do you really want to support a wealthy young white group like the Beastie Boys over a less successful Black group?”

With the help of Steve and others, I had now decided that I did not want to take on this case. I phoned the lawyer and told her so. She was disappointed, but she was okay with it. She was mainly concerned that I should not share with anyone the information that I had learned about the case—and that I should not have contact with Castor’s lawyers. I assured her that I had no interest in doing such a thing, and of course I did not contact anybody.

Later, I learned that this was an historic case. It was the first case that asked, is sampling from the recordings of others without payment or credit a question of artistic freedom, or is it a kind of thievery? As a result of this case, all albums that used samples since then have obtained permissions in advance, paid fees if necessary, and listed the samples in the album’s booklet.

Beastie Boys member Adam Horovitz, known as Ad-Rock, believes it was the first legal case ever that referred to an excerpt from a recording as a “sample” and to the practice as “sampling.” He talked about that in the interview below from 2010. He also says here that it “makes sense” to pay the Castor Bunch, because the Beasties used their recording and they used “plenty of it.”:

(He mentions “Hey Leroy” but it was really “The Return of Leroy.” The full interview is here.)

Since it “makes sense” to pay, it’s no surprise that the case was settled out of court. Castor and his fellow plaintiffs received a payment, as well as a percentage on the copies sold. Therefore, the expert witnesses were probably not needed for many hours, and did not make as much money as they had hoped.

But I learned something important from the experience: An ordinary witness at a trial gets a subpoena to appear. The witness receives a minimal payment for time spent and for transportation. But “expert witnesses” set their own fees, and can potentially make a lot of money. As noted above, some people make a career out of being expert witnesses. That means that if someone agrees to be an expert witness, they are doing it partly, or even mostly, for the money. So can we really trust what they say? If it’s a borderline case, one that can legitimately and truthfully be argued either way, they must be under pressure to interpret the facts to the advantage of the side that is paying them. This kind of pressure cannot be eliminated by any of the policies that are in place. Both sides in a court case can call on expert witnesses, and experts contradict each other all the time. If someone agrees to be an expert witness for one side of the case, it is impossible for money not to be a consideration. Nobody is totally “objective.” Since money is involved, it is not and cannot ever be a “pure” situation.

Something to think about! And I’m glad that I did not get involved in that world.

All the best,
Lewis