Joe Farrell's daughter sues hip-hop artists

[Shawn]

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 ...

Yes, because when the film was initially released they forgot to put the copyright information & logo on the print (which used to be one of the stipulations), so it was never under copyright to begin with and Romero has never made a dime from that film. That's the main reason he did the remake in color back in the 80's, so he could get some money from it. That's also why you can find about a million different VHS & DVD versions of the film...you could dub a copy and sell it yourself if you wanted.

Found this on IMDB:

At the time of the film's release, any work that did not include a copyright notice was assumed to be public domain. Since the film makers forgot to include this notice, the film slipped into the public domain. In was not until 1 March 1989 that a copyright notice was no longer required.

Edited May 25, 2008 by Shawn

[medjuck]

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.

Actually you not only have to pay the actors, you have to get their permission to use the clips. Even for old movies. There's about to be an actors' strike over this very issue (amongst other things). The studios want to be able to sell clips without the actor's permissions, though they're offering to continue to pay for that right.

[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.

Actually you not only have to pay the actors, you have to get their permission to use the clips. Even for old movies. There's about to be an actors' strike over this very issue (amongst other things). The studios want to be able to sell clips without the actor's permissions, though they're offering to continue to pay for that right.

Thanks for the clarification!

[GregN]

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."

I enjoyed reading this!

[captainwrong]

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"?

IIRC, I've recently read an interview with Idris Muhammad where he talks about "Alligator Boogaloo" being sampled a ton. Specifically, his playing on that song is what's been sampled. Regardless, he said the way things worked, any money from licensed samples went to Lou Donaldson, as he is credited as the composer, and the record company. He mentioned being give a one time check out of sympathy by Lou for $2500, but implied a lot more money had been made off the track and he wasn't seeing a dime of it.

Again, IIRC, the way it shook down was that Idris got paid scale for the session and it was considered work for hire, so his claims on the work were over and done back in the day. He was quick to point out in the interview that the beat that gets sampled was his idea, but because it was in Lou's composition, Lou gets the credit.

So, the way I understand it, if the track is registered as a Joe Farrell composition, his estate stands to benefit, even if it's the drum bead that is sampled. IMHO, this is messed up (full disclosure, I'm a drummer, so this kind of stuff hits close to home) and clearly the system hasn't adapted to the world of sample based music.

[Jim Alfredson]

Unless you have it in writing that any playing you do on someone else's project results in you getting songwriting credit, then you have nothing to complain about.

What if someone else covered Alligator Boogaloo and put it to a completely different beat than what Idris did, but for argument's sake, let's say Idris did get songwriting credit on the tune, yet all he came up with is the beat. Should he get paid for that cover if the cover artist is not using "his" beat?

It seems pretty simple to me; the person who owns the rights to the song should get paid if it gets sampled. Whatever deals happened between the rights holder of the tune and the players is between them, not the person who sampled it.

[Alexander]

Here's a new wrinkle for the copyright debate: Prince was recorded performing Radiohead's "Creep" and fans posted the video on YouTube. Prince cried "copyright infringement" and YouTube pulled the video. But Thom Yorke and the rest of Radiohead feel that it's not Prince's song to pull and they want it back up. Who should get the nod here? Prince or Radiohead?

There has been a LONG thread on this very issue over on AllAboutJazz.

Here's the thread in question.

Anyway, as I said over on the AAJ thread, I've listened to both the Kanye and the Common songs (I own both CDs) and I honestly don't hear the Farrell samples. There is no saxophone or flute on the Kanye track at all, and the horns on the Common track come from a Cornelius Brothers and Sister Rose song (credited in the liners, btw). Of course, I don't OWN the Farrell album, so I can't compare it. Wouldn't his music and his legacy be better served by his family working to get this album back into print, rather than suing people?

Edited May 31, 2008 by Alexander

[Alexander]

& 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?

Because West cleared the sample and credited the Otis song in the liners.

[captainwrong]

Unless you have it in writing that any playing you do on someone else's project results in you getting songwriting credit, then you have nothing to complain about.

What if someone else covered Alligator Boogaloo and put it to a completely different beat than what Idris did, but for argument's sake, let's say Idris did get songwriting credit on the tune, yet all he came up with is the beat. Should he get paid for that cover if the cover artist is not using "his" beat?

It seems pretty simple to me; the person who owns the rights to the song should get paid if it gets sampled. Whatever deals happened between the rights holder of the tune and the players is between them, not the person who sampled it.

I can see where you're coming from on that point, but, if someone is using his beat, and just his beat, and creating a new work around it, I feel there should be some compensation made to the guy who actually played and developed the bit being sampled. Especially when we're talking dance/hip hop type stuff where the beat sometimes is the composition. I know that's not the way it works, and again, this may be my prejudice as a drummer coming through, but I just don't feel it's right.

Aside from that, we're talking about recordings made in the era where the closest thing to sampling was those old Buchanan & Goodman "break-in" records. No one in 1969 could have conceived that 20+ years later, people would be taking bits of records and basing new works around them. It just strikes me as a bit harsh and unfair to say that because someone didn't have the crystal ball to see something no one could have imagined at the time that they are SOL.

[captainwrong]

Here's a new wrinkle for the copyright debate: Prince was recorded performing Radiohead's "Creep" and fans posted the video on YouTube. Prince cried "copyright infringement" and YouTube pulled the video. But Thom Yorke and the rest of Radiohead feel that it's not Prince's song to pull and they want it back up. Who should get the nod here? Prince or Radiohead?

There has been a LONG thread on this very issue over on AllAboutJazz.

Here's the thread in question.

A friend and I were talking about this last night. This one is pretty open and shut. Radiohead don't have any right to force Prince to do anything in this instance. While it may be their song, the rights of that performance belong to Prince. As long as he pays the proper royalties to Radiohead's publishing company for what ever he wants to do with it, it is his version to do with what he will.

We came to the conclusion that Radiohead, who have been in the biz long enough to know that's the way it works, are tweaking the Purple One's nose a bit, probably because of his ferociousness in shutting down fan sites and whatnot.

Edited May 31, 2008 by Captain Wrong

[Dan Gould]

Unless you have it in writing that any playing you do on someone else's project results in you getting songwriting credit, then you have nothing to complain about.

What if someone else covered Alligator Boogaloo and put it to a completely different beat than what Idris did, but for argument's sake, let's say Idris did get songwriting credit on the tune, yet all he came up with is the beat. Should he get paid for that cover if the cover artist is not using "his" beat?

It seems pretty simple to me; the person who owns the rights to the song should get paid if it gets sampled. Whatever deals happened between the rights holder of the tune and the players is between them, not the person who sampled it.

Spoken like the man who shares composition credits with the guitarist, but not the drummer.

[Jim Alfredson]

Unless you have it in writing that any playing you do on someone else's project results in you getting songwriting credit, then you have nothing to complain about.

What if someone else covered Alligator Boogaloo and put it to a completely different beat than what Idris did, but for argument's sake, let's say Idris did get songwriting credit on the tune, yet all he came up with is the beat. Should he get paid for that cover if the cover artist is not using "his" beat?

It seems pretty simple to me; the person who owns the rights to the song should get paid if it gets sampled. Whatever deals happened between the rights holder of the tune and the players is between them, not the person who sampled it.

Spoken like the man who shares composition credits with the guitarist, but not the drummer.

Well, these things are discussed and agreed upon by each individual group before-hand. The way credits work in organissimo's case is that if we are all in the same room together when developing a tune from the ground-up, then we all get credit. If only two of us are in the room together when the tune is developed, then those two get credit.

For instance, on the new CD we have a tune called Groovadelphia. It's based on drum pattern by Steve Jordan that I saw on YouTube. I sent it to Randy and said, "Let's write something around this." One day at rehearsal we all started messing with it. I came up with most of the chords and bassline (obviously), Joe the melody (and some chord substitutions), and Randy the beats. Lawfully, you can't copyright chord changes or drum beats. All you can copyright is melodies and lyrics. So under current law, Joe should really be the only songwriter. But per our agreement with each other, we'll all get songwriting credit on the CD and publishing since the tune came together as a result of us all jamming together.

Let's take another example: We have another song called Senor Buffet. Again, I came up with the changes and most of the melody myself and then brought it to Joe. Joe came up with some melodic changes and a melody for the bridge. We practiced it together a few times sans Randy. At a rehearsal we presented it to Randy. We played through it and he added a beat to it, but the beat didn't really change the tune. The tune was already fully formed. Had we stopped there, the tune would be credited to Joe and I.

However, after playing it a few times, Randy suggested adding some important hits and breaks to it that really made the tune better. So we'll all share songwriting credits on that one as well.

These are things that need to be worked out beforehand so everybody understands.

[Jim Alfredson]

And by the way, Randy does share writing credits for two tunes on This Is The Place; Greaze Monkey and Stomp Yo Feets. Both were the result of all three of us in the same room playing together and coming up with ideas. He has credit on at least five of the nine tunes on the new one.

[ejp626]

No one in 1969 could have conceived that 20+ years later, people would be taking bits of records and basing new works around them. It just strikes me as a bit harsh and unfair to say that because someone didn't have the crystal ball to see something no one could have imagined at the time that they are SOL.

I feel for all the session musicians that have gotten screwed, but honestly the idea that all the rights and performance credits are going to be endlessly opened and re-opened. No thanks. The music business is enough of a mess as it is to add even more legal uncertainty to it. And frankly it was pretty clear back in the day that for most producers and most labels (not all) that if you didn't have a publishing credit, that was it. You weren't going to expect anything other than your studio fee regardless of how often the music was reissued, licensed, etc. So I don't see this is any different actually.

[bertrand]

'For instance, on the new CD we have a tune called Groovadelphia. It's based on drum pattern by Steve Jordan that I saw on YouTube. I sent it to Randy and said, "Let's write something around this.'

I fully expect 'Groovadelphia' to be yanked from subsequent pressings of the new CD due to a lawsuit by Steve Jordan

[The Magnificent Goldberg]

Titles like "Groovadelphia" and "Senor Buffet" definitely start to work up the appetite for the newie.

MG

[Jim Alfredson]

'For instance, on the new CD we have a tune called Groovadelphia. It's based on drum pattern by Steve Jordan that I saw on YouTube. I sent it to Randy and said, "Let's write something around this.'

I fully expect 'Groovadelphia' to be yanked from subsequent pressings of the new CD due to a lawsuit by Steve Jordan

Hee hee. Randy does his own thing with it. Besides, like I said, you can't copyright a beat. Only melody and lyrics.