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.”
Lewis Porter and Beastie Boys...strange bedfellows indeed. Now own up,is there a Beastie Boys album lurking somewhere within your record collection. You're under oath :-)
Ha ha--I honestly never bought one of their albums—but I do think Paul's Boutique (the second album) is very creative. I've listened to it online. THANKS!
I have very complicated thoughts about sampling and copyright and plagiarism in music. But I’m very glad to get this unexpected new data on the subject. Fascinating post.
I find this writing so relevant as well considering all the current discussion around AI. Yet another VERY slippery slope we're on about who owns what. Thanks for "doing the right thing" and sharing this with us. No Sleep Til Brooklyn.................
Yes. In general the tiny percent of people who create technology are always moving forward without regard for the ethical issues that might arise. AI is definitely another example. THANKS CHRIS
Are you familiar with the Beastie Boys vs. James Newton case? James sued and lost; the Beastie Boys turned around and sued him and he lost his house! Story at:
Yes, I am indeed familiar with it. The complication, as that link notes, is that the Beastie Boys Did indeed license, pay for and give credit for Newton's sample, as they have done with all samples since that first case in 1987. In fact Adam Horovitz said he was shocked when Newton sued, essentially to ask for more money than his record label had already agreed to (on his behalf). Complicated! THANKS KEN!
I never read that he lost his house (and it's not in the link you shared). But another part of this story is, know what you're signing. As the ECM record label said, it is standard for them to handle licensing for their recordings. I never had a problem with signing that for my recordings (and books), but at least I knew I was signing it! Newton definitely seems not to have known. THANKS KEN
Just admirable. One of our problems, and it's HUGE and getting worse, is that more and more people are all about the money and only the money, never thinking about what's the right thing to do.
If that had happened today, Capitol would likely have had to revise the writing credits for "Hold It" and add Pruitt and Thomas as composers so they could benefit legally.
The case was an interesting case. And the story was an interesting story until the penultimate paragraph.
Expert witness testimony is subject to a body of well-developed law designed for strict control of the nature and quality of the testimony. The reason? Expert testimony may put statements of opinion before the jury that an ordinary witness would not be permitted to offer.
Federal court rules of evidence seek to assure that expert opinion is well-grounded in scientific, technical, or other specialized knowledge. Ergo, the expert testimony must pass some tests: (1) it must be based on sufficient facts (i.e., it may not be “spin”); (2) the testimony must be the product of reliable principles and methods (not opinion or “spin”); (3) the expert must reliably apply the established principles and methods to the specific facts of the case at hand.
Further, before a jury may hear the testimony of an expert, the expert must qualify as an expert. The judge hears the testimony outside the presence of the jury and applies the tests outlined above. If the tests are not met, the expert may is not qualified and may not offer testimony. If the expert is qualified, the expert testimony must not stray from that approved by the judge. The judge’s rulings are subject to review on appeal.
“The ‘woman’ lawyer,” (as you call her) could not qualify the rock critic as an expert under the rules of evidence. Only a judge could do that. (I wonder whether there is a reliable body of principles and methods that can be applied to rock music criticism, but I’m no expert on that.)
Finally, qualified expert testimony usually requires substantial work to prepare (and the work product is reviewed by the judge). The expert is permitted to be compensated for that work, unlike an eye-witness who merely reports direct observations. If the expert is compensated for preparation and testimony, the amount of time and compensation may be disclosed to the jury. (Experts donate their time in many high-profile cases – the George Floyd case comes to mind.)
BTW, each state has its own rules of evidence applicable to experts. State rules vary somewhat from state to state. Basically, though, they are about the same as described above. And if interested, I am not, never have been, and never will be a trial lawyer or an expert witness.
Hello Allen and thank you for writing this detailed response. Of course I am familiar with all the details that you cite. But in my judgement you have missed the point. The KEY sentence in my conclusion was "If it’s a borderline case, one that can be argued either way..." (You seem to interpret the word "spin" differently from me—I have now replaced it since it seems to have created confusion.) Such cases exist, regardless how many controls are in place—which is why, for example, Both sides can call expert witnesses, and expert witnesses can and do disagree with each other. (As for why the rock critic qualified as an expert witness, I can only say that clearly he did, and that was not ever disputed and he did proceed in that capacity for as long as the case went on.) But the BOTTOM LINE is, there will ALWAYS be cases where experts come to different conclusions. In short, I am discussing human subjectivity, which cannot be eliminated by any amount of legal guidelines. THANK YOU ALLEN
Good for you.
Lewis Porter and Beastie Boys...strange bedfellows indeed. Now own up,is there a Beastie Boys album lurking somewhere within your record collection. You're under oath :-)
Ha ha--I honestly never bought one of their albums—but I do think Paul's Boutique (the second album) is very creative. I've listened to it online. THANKS!
I have very complicated thoughts about sampling and copyright and plagiarism in music. But I’m very glad to get this unexpected new data on the subject. Fascinating post.
Very complicated and I certainly don't intend for this to be a full discussion of the issues involved. THANKS KARL!
This detail was covered in more than one episode of "Law and Order".
Expert witnesses you mean? Yes, I'm sure that must come up! THANKS
I find this writing so relevant as well considering all the current discussion around AI. Yet another VERY slippery slope we're on about who owns what. Thanks for "doing the right thing" and sharing this with us. No Sleep Til Brooklyn.................
Yes. In general the tiny percent of people who create technology are always moving forward without regard for the ethical issues that might arise. AI is definitely another example. THANKS CHRIS
Are you familiar with the Beastie Boys vs. James Newton case? James sued and lost; the Beastie Boys turned around and sued him and he lost his house! Story at:
https://newmusicusa.org/nmbx/when-stealing-is-not-a-crime-james-newton-vs-the-beastie-boys/
Ken Borgers
Yes, I am indeed familiar with it. The complication, as that link notes, is that the Beastie Boys Did indeed license, pay for and give credit for Newton's sample, as they have done with all samples since that first case in 1987. In fact Adam Horovitz said he was shocked when Newton sued, essentially to ask for more money than his record label had already agreed to (on his behalf). Complicated! THANKS KEN!
Ooo, didn't know that. Ouch! Still, for James to lose his house--seems kind of cruel. As you say: complicated. Thanks for enlightening me!
I never read that he lost his house (and it's not in the link you shared). But another part of this story is, know what you're signing. As the ECM record label said, it is standard for them to handle licensing for their recordings. I never had a problem with signing that for my recordings (and books), but at least I knew I was signing it! Newton definitely seems not to have known. THANKS KEN
Just admirable. One of our problems, and it's HUGE and getting worse, is that more and more people are all about the money and only the money, never thinking about what's the right thing to do.
200 bucks an hour was a lot of moolah back then.
Exactly. But not worth my soul, so to speak. THANKS DEAN
If that had happened today, Capitol would likely have had to revise the writing credits for "Hold It" and add Pruitt and Thomas as composers so they could benefit legally.
Interesting thought--maybe so--but in most cases the people who are sampled do not get a composer credit. THANKS DAVID
Expert witnesses!
Got it!! Thanks!
Lewis,
The case was an interesting case. And the story was an interesting story until the penultimate paragraph.
Expert witness testimony is subject to a body of well-developed law designed for strict control of the nature and quality of the testimony. The reason? Expert testimony may put statements of opinion before the jury that an ordinary witness would not be permitted to offer.
Federal court rules of evidence seek to assure that expert opinion is well-grounded in scientific, technical, or other specialized knowledge. Ergo, the expert testimony must pass some tests: (1) it must be based on sufficient facts (i.e., it may not be “spin”); (2) the testimony must be the product of reliable principles and methods (not opinion or “spin”); (3) the expert must reliably apply the established principles and methods to the specific facts of the case at hand.
Further, before a jury may hear the testimony of an expert, the expert must qualify as an expert. The judge hears the testimony outside the presence of the jury and applies the tests outlined above. If the tests are not met, the expert may is not qualified and may not offer testimony. If the expert is qualified, the expert testimony must not stray from that approved by the judge. The judge’s rulings are subject to review on appeal.
“The ‘woman’ lawyer,” (as you call her) could not qualify the rock critic as an expert under the rules of evidence. Only a judge could do that. (I wonder whether there is a reliable body of principles and methods that can be applied to rock music criticism, but I’m no expert on that.)
Finally, qualified expert testimony usually requires substantial work to prepare (and the work product is reviewed by the judge). The expert is permitted to be compensated for that work, unlike an eye-witness who merely reports direct observations. If the expert is compensated for preparation and testimony, the amount of time and compensation may be disclosed to the jury. (Experts donate their time in many high-profile cases – the George Floyd case comes to mind.)
BTW, each state has its own rules of evidence applicable to experts. State rules vary somewhat from state to state. Basically, though, they are about the same as described above. And if interested, I am not, never have been, and never will be a trial lawyer or an expert witness.
Bird Lives,
AW
Hello Allen and thank you for writing this detailed response. Of course I am familiar with all the details that you cite. But in my judgement you have missed the point. The KEY sentence in my conclusion was "If it’s a borderline case, one that can be argued either way..." (You seem to interpret the word "spin" differently from me—I have now replaced it since it seems to have created confusion.) Such cases exist, regardless how many controls are in place—which is why, for example, Both sides can call expert witnesses, and expert witnesses can and do disagree with each other. (As for why the rock critic qualified as an expert witness, I can only say that clearly he did, and that was not ever disputed and he did proceed in that capacity for as long as the case went on.) But the BOTTOM LINE is, there will ALWAYS be cases where experts come to different conclusions. In short, I am discussing human subjectivity, which cannot be eliminated by any amount of legal guidelines. THANK YOU ALLEN
AI is more than a little scary. Guess I'll just have to stay tuned.
TRUE!