Joe Farrell's daughter sues hip-hop artists

[Joe]

http://www.nme.com/news/kanye-west/36827

[jlhoots]

Hope she does better than James Newton did when he sued The Beastie Boys.

[Ken Dryden]

I've always thought sampling another artist's work in recordings was indicative of a lack of musical talent.

I hope Joe Farrell's daughter wins this lawsuit, along with other artists and their estates.

[JSngry]

I've always thought that confusing means with ends when rendering an aesthetic judgment was indicative of intellectual laziness and/or shallowness, but hey.

[The Magnificent Goldberg]

I've always thought that confusing means with ends when rendering an aesthetic judgment was indicative of intellectual laziness and/or shallowness, but hey.

Yeah, but it's still not OK to swizzle someone out of their legal dues. That's happened to enough musicians already.

So I hope she's successful, too.

MG

[Noj]

Much like with the Newton case, I believe the outcome will be determined by whether or not the rap songs in question used Farrell's composition without permission. In the case of Newton vs. The Beastie Boys, it was determined that the portion of Newton's song used was too short and too completely removed from context to be considered Newton's composition.

I wish there were a happy medium, but the more I've thought about the issue the more I do not believe a happy medium is possible. The laws protect the musicians being sampled but cripple the art of sampling. There is no consensus on the merits of sampling and never will be, for at times it is blatant stealing and at others it is brilliant collage, and at times it is both (though there will be no consensus here as to when sampling has ever achieved anything of artistic merit).

[JSngry]

I've always thought that confusing means with ends when rendering an aesthetic judgment was indicative of intellectual laziness and/or shallowness, but hey.

Yeah, but it's still not OK to swizzle someone out of their legal dues. That's happened to enough musicians already.

So I hope she's successful, too.

MG

Agreed.

The aesthetics of sampling and the legal/moral issues that stem from it are two different matters entirely.

[JSngry]

Much like with the Newton case, I believe the outcome will be determined by whether or not the rap songs in question used Farrell's composition without permission. In the case of Newton vs. The Beastie Boys, it was determined that the portion of Newton's song used was too short and too completely removed from context to be considered Newton's composition.

I wish there were a happy medium, but the more I've thought about the issue the more I do not believe a happy medium is possible. The laws protect the musicians being sampled but cripple the art of sampling. There is no consensus on the merits of sampling and never will be, for at times it is blatant stealing and at others it is brilliant collage, and at times it is both (though there will be no consensus here as to when sampling has ever achieved anything of artistic merit).

I think that a simple co-composer's credit & compensation according to same would be sufficient, no?

However, why there's not been a consensus reached between Congress, the RIAA, & the AFM as to establishing a fair and consistent "sampling charge" that everybody knows up front is going to be part of the deal, no tricks, no gimmicks, no exceptions (hey, wait, this is the music business, so...) is probably part of why everything else about the 20the Century aspects of the business are being faded away like the ending of a 1969 Brian Wilson-produced 45.

[Shawn]

I don't really have any "emotional" feelings attached to sampling one way or another. It's part of the modern musical landscape and it can be used in either artistic ways...or blatant rip-off fashion. As for the legality of it my views pretty much echo Jim's.

Simply put, the original artist should be credited on the album & compensated for the use of the sample. Either by a flat-fee or a royalty based structure tied to single/album sales.

There are some interesting things going on in the music biz these days...interesting in that artists seem to be giving the big middle finger to the labels in general and are finding other ways to market and distribute their music.

1) NIN just released an album for free on their website, in a variety of audio formats so fans can remix as they see fit (as long as they don't in turn sell those remixes). They also of course instructed their fans to steal their last major label effort if they could (since they felt they were being raped by their record label). I'm sure these same fans will happily purchase later content.

2) The Eagles deal with Wal-Mart (though both the Eagles & Wal-Mart are part of the axis of evil in my opinion) is in itself pretty interesting. The Eagles don't need a promotional blitz machine to sell records, they have a large enough brand, all they need is to get the CD's on the shelves. The deal also netted the band $4 per album in royalties which was double what any label would offer them on a one-off deal. This also allowed them to sell a 2-CD set for $11.98 retail which was good for their fans as well. I can see other mega-superstar artists adopting this model.

3) Even a small act like King's X has decided that retaining ownership of their masters, publishing, etc is in their best financial interest. They own their own studios and touring equipment, why would you need a label? On their most recent release it states "Licensed from King's X" on the CD jacket and on the disc itself.

Times are a-changing.

Edited May 24, 2008 by Shawn

[Ken Dryden]

Frank Zappa prohibited unauthorized sampling on his discs prior to his death. It would be interesting how many seconds it would take of sampling for a judge to rule copyright infringement.

Frankly, I think if someone is using another artist's work without paying him, it is worthy of a lawsuit.

I wonder what will happen if someone samples a few words by a hip-hop artist? I'd bet they'd sue in a heartbeat.

[marcello]

Upon This Rock is registered by BMI in Joe Farrell's name.

His estate may not own the publishing though.

Here's the details:

THE MUSIC GOES ROUND B V

D/B/A MUSIC IN ONE

C/O THIRD TIER MUSIC LLC

1209 16TH AVENUE SOUTH

NASHVILLE, TN 37212

[The Magnificent Goldberg]

I wonder what will happen if someone samples a few words by a hip-hop artist? I'd bet they'd sue in a heartbeat.

Ghanaian Hiplife artists are sampling US HipHop records, and have been doing so for several years - the oldest HipLife CD I have is from 1999, but it was by no means the start of the movement.

There are no credits on the CDs.

But some of it is bloody wonderful!

MG

[JSngry]

http://www.dustygroove.com/item.php?id=jzv...p%3Bincl_cs%3D1

[JSngry]

http://prince.org/msg/8/271570?jump=27&pg=1

Hmmm...

And oh by the way...

Did anybody really think that decreasing funding for school music programs waaaay back in the day was going to keep them kids from finding a way?

You go for what you know, and if what you know is records and there ain't no ready access to real drums and real horns and real strings and peoples/ways to learn same, hey.

Leaving aside the Future Is Now Shock of The Inevitable Digital Reality that's Here And Everywhere NOW, what the hell does anybody think is going to happen when the historical lifeblood of American Popular Music gets holed up, written off, Dusted & Rocked, and their kids de-funded - that everybody's just gonna FIND instruments to play, step out and over the hood and go to Blinkin' Sinner and WAIT? (That's what Sonny did with Hawk, but Hawk was a neighbor, a cat in the hood, dig?) Anybody thinkin' that is a DAMN fool.

This matter being discussed by "jazz people" is about as relevant (and informed) as.... never mind.

[Mark Stryker]

I have not kept up with the logisitics of the law since writing this story 10 years ago, but thought the board might find the particulars in this case interesting. Armstrong, by the way, did eventually win settlements in this suit. He did well, though the specifics were protected.

AUGUST 23, 1998 Sunday METRO FINAL EDITION

NO FREE SAMPLES A DETROIT JAZZ MUSICIAN SUES AFTER SNIPPETS OF HIS SONG ARE USED TO MAKE A RAP RECORD AND SELL SHOES

BYLINE: MARK STRYKER Free Press Music Writer

SECTION: FEATURES; Pg. 1L

LENGTH: 1445 words

It was early April 1996 and Ralphe Armstrong was relaxing in his Detroit home. Reading his newspaper in bed and watching TV, he realized that the major league baseball season was opening that night. If there's one thing that Armstrong, an internationally known jazz bassist, loves nearly as much as music, it's baseball.

He flipped the channel to ESPN as a commercial for Adidas athletic shoes flashed across the screen. The rap music soundtrack immediately caught his ear. Man, that's a hip drumbeat, he thought. Then a high falsetto vocal chimed in on top of the drums -- hey, hey, hey, hey. Armstrong picks up the story:

"I listened and said, 'That's a weird sounding voice.' Then I listened again and said, 'Huh, that sounds familiar.' The third time I listened, I almost fell out of the bed:

'That's me singing on this commercial!!!'"

And so began the oddest episode in Armstrong's career -- a labyrinthine tale involving lawyers, lawsuits and two recordings -- a 1976 LP by John McLaughlin's Mahavishnu Orchestra, one of the era's premier jazz-fusion bands, and a 1991 CD by Massive Attack, a critically acclaimed English rap group.

Other characters in this drama, aside from Adidas, include a major record company and a Hollywood film studio. It's a potboiler that opens a window on the sometimes grimy world of the pop music industry, and it's a story that, in the end, might make Armstrong very wealthy.

Armstrong, 42, has filed suit in U.S. District Court in New York claiming that Massive Attack infringed on his copyright by unlawfully sampling -- electronically copying bits of sound from a recording -- a composition he wrote and recorded in the '70s with the Mahavishnu Orchestra. The suit claims that the Massive Attack song "Unfinished Sympathy" on its album "Blue Lines" includes passages lifted from Armstrong's "Planetary Citizen," which appears on the Mahavishnu album "Inner Worlds."

More than a dozen defendants are named in the suit, including the three people in Massive Attack, two producers, the American and British divisions of Virgin Records, several publishing companies, Adidas and the shoe company's ad agency.

If Armstrong wins in court, he would be entitled to a share of the profits Massive Attack and the record company made from the song -- both from CD sales and live concert performances. Armstrong would also be entitled to publishing fees and licensing fees -- and possibly shoe company profits attributable to the TV commercial. Settlements in similar cases have netted plaintiffs hundreds of thousands of dollars.

Armstrong, whose resume also includes touring or recording with Frank Zappa, Jean-Luc Ponty, Aretha Franklin, Earl Klugh, Eddie Harris and Geri Allen, contacted an attorney soon after hearing himself on the television commercial.

After some research, he discovered that "Unfinished Sympathy" had also been licensed to Paramount for the soundtrack of the 1993 film "Sliver." The song appears as the backdrop for a steamy sex scene between Sharon Stone and William Baldwin. Armstrong has already reached an out-of-court settlement with Paramount for the use of the song. The terms are protected by a confidentiality agreement.

"It's just like being robbed." says Armstrong. "Not at gunpoint, but it's insulting. Some people say it's to glorify your art, but it doesn't glorify anything to me. It makes me mad because they stole it."

Armstrong says that Massive Attack copied a distinctive drumbeat, a short bass fragment and two key melodic phrases from his original, the first comprising the words "hey, hey, hey, hey" and the second "are you ready?"

"They sampled a readily identifiable portion of Ralphe's composition as he had performed it with his vocal performance, and then what they did was to loop it and make it the dominant part of the Massive Attack recording," says his lawyer, Robert Osterberg of New York.

Repeated attempts to reach Massive Attack for comment through its record company were unsuccessful. Lawyers for the other major defendants, Virgin and Adidas, said their companies will not comment on pending litigation.

Copyright law says that in order to prevail, Armstrong must prove there is a "substantial similarity" between his original composition and Massive Attack's song. The test for substantial similarity is whether an average observer would recognize that elements of Massive Attack's song were copied from Armstrong's original.

The law allows minimal use of copyrighted material without permission, but the courts have not specified an exact amount; the law also says a copyrighted work may be used for criticism, comment, reporting, teaching or research.

Copyright experts say that the length of a sample is less important than whether it reproduces the heart of a song, which might be as little as a bar or two of music.

In a key 1991 case in New York, a federal judge ruled against rapper Biz Markie for sampling only three words from Gilbert O'Sullivan's '70s pop song "Alone Again (Naturally)." The judge opened his opinion with a quote from the Bible: "Thou shalt not steal."

"In terms of Armstrong's case, this is terrific because only a small portion of 'Alone Again (Naturally)' was used, and nobody would confuse the Biz Markie album with 'Alone Again (Naturally),' " says Larry Iser, a music and copyright lawyer in Los Angeles.

Since the Biz Markie case, record companies and artists have generally become more careful about seeking permission to sample the material of others. But lawsuits have also become more common, with all but a few settling out of court.

Defendants in sampling cases typically argue that the music copied either isn't original or the amount sampled is so small that the new work is different overall from the other. Iser says that Massive Attack could claim that Armstrong's "hey, hey, hey, hey" refrain has been part of the public domain since early rock 'n' roll. But the other sampled phrase -- "are you ready" -- will be a tougher fight.

"Once you've sampled a lyric that's something more than 'hey, hey, hey' or 'yeah, yeah, yeah,' you're much more likely to sustain the claim that a substantial piece of the original lyric was infringed," Iser says.

Massive Attack might also claim that the drumbeat it sampled should not be considered part of Armstrong's composition. The courts have traditionally protected melody and lyrics, but rhythm is a murky issue. There is a line of cases suggesting rhythm cannot be copyrighted. But some lawyers also say that a drumbeat could be so unique -- especially in rap music where songs are often just lyrics and rhythm -- that it might qualify as composition.

There is one more distinction important to Armstrong's case. There are two separate copyrights in play. Armstrong owns the copyright on the song "Planetary Citizen," but Sony owns the copyright on the Mahavishnu Orchestra album, the performance. So just because Massive Attack sampled Armstrong's voice, it doesn't mean his copyright was infringed. (Osterberg says he is not aware of any suit filed by Sony against Massive Attack.)

Armstrong was just 19 years old when he wrote and recorded "Planetary Citizen," a souped-up funk tune with naive but sincere lyrics dedicated to world peace through love. There are several levels of irony here: Licensing the song legitimately would have cost Massive Attack and Virgin Records a fraction of what they might end up paying in the end -- one copyright lawyer said $5,000 to $10,000 would not have been an unreasonable sum for the rights to sample "Planetary Citizen" on a CD.

Moreover, it's an odd twist of fate that a song with such noble intentions should end up at the center of controversy. It could take several years for the lawyers to slug it out, but Armstrong says he's prepared to wait for what he believes is his fair share.

"I don't care how long it takes," he says. "I have patience, and I'll just keep taking my vitamins. It's my product."

{END}

Armstrong's remarkable life as a musician began at the tender age of 7

BYLINE: By Mark Stryker

SECTION: ENTERTAINMENT NEWS

LENGTH: 752 words

Ralphe Armstrong is a bulldog of a man with a baby face and a benevolent disposition. He has packed a lot of bass playing into his 42 years. But then, the native Detroiter got off to an early start.

He took up the bass at age 7, when his father, the well-known blues musician William Howard Armstrong, made an instrument for his son by grafting a German bass neck onto a wooden box. Young Ralphe was soon working around town with dad, soaking up the city's vibrant jazz and pop scene and practicing until 4 a.m. He knew he wanted a life in music as far back as his first paying gig: playing soul music at a neighborhood bar on the east side with a real bass. He wore dark glasses and a hat so nobody would guess his age.

He was 12.

"I brought home $ 30, and my mother looked at me and said: 'Where did you get this money?' " Armstrong says. "I said, 'I went up on Harper and I played.' And she said, 'Well, you go back up there.' "

Armstrong's career trajectory continued at warp speed. At 13, he worked a job in Washington, D.C., with Motown's Miracles. He studied classical music at Interlochen and got private pointers from Ron Carter whenever the Detroit-bred jazz great came to town. At 17, he joined John McLaughlin's Mahavishnu Orchestra for three years. By the time he was 21, he had worked with Carlos Santana and Frank Zappa and was starting a six-year tenure with Jean-Luc Ponty.

He has since worked or recorded with Michael Jackson, George Benson, B.B. King, Aretha Franklin, Eddie Harris, Kenny Burrell, Geri Allen and many others. It's an unusually eclectic resume, encompassing pop, funk, fusion, soul and modern jazz.

Yet what makes Armstrong unique is not just his ability to fit seamlessly into any context; it's the high-gloss refinement he brings to each style and the way he meshes a rapid-fire technique with the ability to strike a deep groove.

"Ralph is a very schooled musician, but he's also very natural," says fellow bassist Rodney Whitaker, one of Armstrong's former students who has gone on to work with Wynton Marsalis and others. "He can play anything. He's one of those guys when you hear him you think: I got to go home and practice."

Given Armstrong's vast experience, it's not surprising that he has developed a repertoire of stories that any raconteur would envy. There's the one about recording in London with McLaughlin and the London Symphony at age 17 and eating dinner every night with former Beatles producer George Martin and classical conductor Michael Tilson Thomas.

Or the one about a trip to fascist Spain, where, if the musicians didn't finish a concert by 11 p.m., officials would cut the power and raise the house lights, then gun-toting soldiers would move the people out.

One of Armstrong's best yarns is the story of how he got his break with the Mahavishnu Orchestra:

One day after school, he dropped by the home of Motown bassist Michael Henderson. Henderson, then with Miles Davis, said he had some friends out East looking for a bass player. So Armstrong played his bass over the phone for a group that included drummer Narada Michael Walden.

The cats were so impressed they sent the 15-year-old a plane ticket to Connecticut. While he was there rehearsing, McLaughlin dropped by, heard Armstrong and promised to call him. "Yeah, right," a skeptical Armstrong thought to himself.

But a year later, the phone rang. And soon Armstrong, with his mother's blessing, was on the road with one of the biggest names of the day. He finished high school by squeezing in the academic work between tours.

"My life was music," he says. "That's something people don't understand today. If you want to be an artist, you have to donate your time to it, to improve yourself mentally and physically with the instrument."

These days, Armstrong travels four or five months a year. He recently recorded with R&B stylist Patti Austin. He'll appear at Labor Day's Montreux Detroit jazz fest and later this fall, he'll head to Europe with the adventurous jazz trio led by Detroit-born pianist Allen.

"I don't limit myself," he says."I try not to become close-minded to new ideas because then you become complacent. That's what Miles (Davis) was always into: trying to grow. I feel if you become too arrogant to not accept new ideas, you should really give it up. Music is something that you can always learn more from."

Edited May 25, 2008 by Mark Stryker

[Kari S]

Without going any further into the age old "sampling is not music making" debate, I'll just add that the best producers out there, like Dj Premier, Kanye West (when he's not lazy), and especially the late great J.Dilla can take a sample and flip and splice it to make it sound completely fresh and original. For example: this is based on an Isley Brothers track http://www.youtube.com/watch?v=zwNGZ7tklQc . Kanye West has also proven that he can be creative with his samples, but too often will just take a well known hit, such as Curtis Mayfield's "Move On Up", and pretty much use it as it is. (example: "Touch The Sky" by K.West - http://www.youtube.com/watch?v=53NrAbjvL_4)

Then again, Kanye West also said that his next album will be equal to "Songs In The Key Of Life". Letting go of the fact, that its a ridiculous statement, this is a question of the chicken or the egg ... because he uses existing music as the basis of his "songs", when Stevie created that masterpiece from nothing.

Edited May 25, 2008 by Kari S

[JSngry]

Then again, Kanye West also said that his next album will be equal to "Songs In The Key Of Life". Letting go of the fact, that its a ridiculous statement, this is a question of the chicken or the egg ... because he uses existing music as the basis of his "songs", when Stevie created that masterpiece from nothing.

I know what you mean, and agree, but to think that Stevie's music of that time didn't draw upon many other sources in the form of "influences", is, as I'm sure you'll agree, just not accurate.

Nothing, nothing, is created in a vacuum.

[marcello]

& here's the alleged Kanye performed lift--

http://www.youtube.com/watch?v=N3FW-HgQYE0...feature=related

edc ain't much of a Ye fan but Cam'rom is hot here & you can't front on Kanye's producing ability (on the mic the best you can is he tries to use timbre/character to overcome his weakness-- ghostwriters help too)...

here as elsewhere he might loop stuff too obviously, long, but it bothers others less.

MG-- yr boy Chuck Willis ** did ** get a partial songwriting credit here

Why hasn't Otis Redding's estate sued?

[RDK]

I'm not much of a fan of rap/hip-hop, but I've always found the sampling=bad arguement coming from the jazz community really ironic given how jazz is all about improvisation, with artists often lifting quotes (or full on creating new comps) from popular songs and showtunes. Hell, how is Common or Kanye sampling riffs any worse than Sonny injecting numerous musical quotes in his solos?

[Ken Dryden]

Wouldn't you agree that lifting a musician's work to become a part of a new CD without paying him/her (even though he/she wasn't present in the studio) is a ripoff? If someone were present just to add a live recorded solo of a few seconds, I bet that artist would get paid.

Sampling without payment is theft.

[JSngry]

Just curious...

In the movies, when they use ("sample") a clip from another (usually older) film, I know they gotta pay for the rights, as they should. But who gets paid & how does the money get distributed when they do?

What I'm wondering here is, if Joe Farrell's record got sampled (& if only the drum beat got used), wouldn't the first in line to collect be the record company that currently holds the rights to the CTI catalog - aka Sony/BMG? And then the drummer (Jimmy Madison)? And then "Joe Farrell"?

Edited May 25, 2008 by JSngry

[Shawn]

Just curious...

In the movies, when they use ("sample") a clip from another (usually older) film, I know they gotta pay for the rights, as they should. But who gets paid & how does the money get distributed when they do?

- Depends on the owner of the copyright. If it's a "studio system" era picture then the payment would go to whoever currently owns that catalog. I'm not sure about post-studio era, but most likely it would still go to the studio and/or the Producer...possibly the film director if they had a profit sharing contract.

What I'm wondering here is, if Joe Farrell's record got sampled (& if only the drum beat got used), wouldn't the first in line to collect be the record company that currently holds the rights to the CTI catalog - aka Sony/BMG? And then the drummer (Jimmy Madison)? And then "Joe Farrell"?

- If I'm not mistaken the money would go to whoever owns the publishing rights for the song.

[JSngry]

So...all the "sampling" that got done for, say, Sleepless In Seattle...likely none of the fees that got paid for any of that footage went back to the actors actually seen in the "samples", right?

Not talking a stand one way or the other as to whether or not that's "right", just saying that to think that anything resembling "big money" (or even "fair money") gets back to the "frontline employees" unless it's negotiated up front is far more often than not a wistful, naive, and/or ignunt-ass (dependent upon how loud and Rite-Chess-ly one protests) notion.

And yeah, when Hollywood does it, it's "buisness", but when hip-hop does it, it's...you know.

[Shawn]

So...all the "sampling" that got done for, say, Sleepless In Seattle...likely none of the fees that got paid for any of that footage went back to the actors actually seen in the "samples", right?

Not talking a stand one way or the other as to whether or not that's "right", just saying that to think that anything resembling "big money" (or even "fair money") gets back to the "frontline employees" unless it's negotiated up front is far more often than not a wistful, naive, and/or ignunt-ass (dependent upon how loud and Rite-Chess-ly one protests) notion.

And yeah, when Hollywood does it, it's "buisness", but when hip-hop does it, it's...you know.

Correct, the actors wouldn't have gotten money since the film in question was An Affair To Remember, at that point most actors were still under contract to studios so they were paid a base weekly salary and didn't get a share of the profits.

That is no longer the case these days as most actors are paid a "lump sum" fee and many negotiate for a piece of the box office.

P.S. - There are quite a few films out there in "Public Domain" land as well (copyrights weren't renewed, etc), so you could make a film and use entire sequences from say "Night of the Living Dead" and wouldn't have to pay anybody.

Edited May 25, 2008 by Shawn

[Dan Gould]

Are you sure Night of the Living Dead is PD? Considering how many 100s of millions of dollars its supposedly made for a six-figure shooting budget, I'd be surprised ...