In 2000 the Beastie Boys were sued by avant garde jazz composer James Newton for repeatedly using a six-second, three-note sample of his piece “Choir,” in “Pass the Mic”. The Beastie Boys had obtained the rights to use the recording, however, Newton argued that they should have also purchased the rights to the original composition, and thus were in violation of copyright.
Newton’s challenge came in the form of proving that the six second flute sample was original and therefore copyrightable. The defence argued that the three-note sequence was a simple “neighboring tone” and was not original. Newton claimed that the sample was more than just three notes. In fact, the special playing technique described in the score (holding one fingered note constant while singing the other pitches) resulted in a complex and identifiable section. This “overblowing” of the flute was known as the Newton Technique.
And here we come across an interesting question; even if the Newton Technique made this section “original”, was the technique a part of the composition or the performance? Truly, a description of the technique was annotated at the bottom of the score: “This piece requires singing into the flute and fingering simultaneously”. But the technique itself could only be realized and interpreted by a performer, so surely must have been part of the performance.
The problem here stems from a circular definition. We cannot define a composition or a performance independently. It only makes sense to talk about them in terms of each other. A composition is a collection of symbols that are meant to be realized through a performance and a performance is the realization of a composition.
So where does the Newton Technique reside? Well in a bit of both…
The Beastie Boys won the case, and rightly so I believe. As a good musician friend of mine put it,
“People have been singing while blowing into their instruments forever.” The Newton Technique just wasn’t enough.
You can listen to both the pieces here.