Fragmented Literal Similarity in the Ninth Circuit: Dealing with Fragmented Takings of Jazz and Experimental Music

37.2 ZAKEN NOTE FINAL (BL) (DO NOT DELETE) 1/9/2014 9:18 PM Fragmented Literal Similarity in the Ninth Circuit: Dealing with Fragmented Takings of Jazz and Experimental Music Michael Zaken* Newcomers to jazz often ask: Is it true that jazz is all improvised? Somehow the casual and romantic notion that jazz is generated in an entirely spontaneous manner has become deeply rooted in our society.1 The notator of any jazz solo, or blues, has no chance of capturing what in effect are the most important elements of the music. A printed musical example of an Armstrong solo, or of a Thelonious Monk solo, tells us almost nothing except the futility of formal musicology when dealing with jazz.2 The difficulty of applying standard infringement measures to musical compositions in a way that will properly protect the plaintiff’s original expression and the defendant’s freedom to create original expression of his own may explain why courts have occasionally swerved from one pole to another and why even the most experienced judges have committed fundamental errors in these cases.3 The testimony of an expert upon such issues, especially his cross-examination, greatly extends the trial and contributes nothing which cannot be better heard after the evidence is all submitted. It ought not to be allowed at all; and while its admission is not a ground for reversal, it cumbers the case and tends to confusion, for the more the court is led into the intricacies of dramatic craftsmanship, the less likely it is to stand upon the firmer, if more naive, ground of its considered impressions upon its own perusal. We hope that in this class of cases such evidence may in the future be entirely excluded, and the case confined to the actual issues; that is, whether the defendant copied it, so far as the supposed infringement is identical.4 INTRODUCTION In the spring of 1992, the Beastie Boys released their single “Pass the Mic.” The Beastie Boys, like many other hip-hop groups, stitched together the background music for their song by excerpting or “sampling” short segments of * J.D. Columbia Law School, 2014; B.A. Columbia University, 2011; Jazz Department Head, WKCR-FM NY, 2009. Special thanks to Ashley Jones and Grant Goeckner-Zoeller for all of their help throughout the Note process and for constantly challenging me to push this Note further. Thanks to Rob Bernstein for convincing me to begin the Note process. As always, thank you to Emily, my wife, for her constant support, patience and encouragement throughout the many drafts of this Note. 1. BARRY KERNFELD, WHAT TO LISTEN FOR IN JAZZ 99 (1995). 2. LEROI JONES, BLACK MUSIC 19 (Akashic Books 2010) (1968). 3. 2 PAUL GOLDSTEIN, GOLDSTEIN ON COPYRIGHT § 10.3 (3d ed. 2012). 4. Nichols v. Universal Pictures Corp., 45 F.2d 119, 123 (2d Cir. 1930). 283 37.2 ZAKEN NOTE FINAL (BL) (DO NOT DELETE) 1/9/2014 9:18 PM 284 COLUMBIA JOURNAL OF LAW & THE ARTS [37:2 other recordings and melding them into a new recording.5 As part of this process, the group selected “Choir,” a composition by the accomplished avant-garde jazz flutist and composer James Newton.6 The Beastie Boys took the opening six seconds of “Choir” and looped it over forty times throughout their song, “Pass the Mic.”7 The Beastie Boys obtained a license to use the sound recording of “Choir” from ECM, the record label that owned the rights to the recording copyright, but neglected to obtain permission from James Newton, who owned the composition copyright.8 In doing so, the Beastie Boys laid the seeds for a dispute that would create a massive controversy over the way that copyright law treats jazz, experimental and other avant-garde music. Newton sued the Beastie Boys in the Central District of California for copyright infringement. In a summary judgment ruling, the court held that the sampled portion was neither original nor substantially similar to “Choir.”9 Newton’s case, which ultimately made its way up to the Ninth Circuit,10 brought together many important issues involving copyright and music. The copyright status of the now common practice of sampling was under review. Moreover, because the suit only involved the rights of Newton as the composer, the Court was forced to engage in the complex process of separating out the distinct elements of the composition copyright from the sound recording of “Choir” used by the Beastie Boys. The Court also had to analyze an avant-garde jazz composition, which involved the difficult task of interpreting notation in nontraditional music. Newton’s jazz composition style required the Court to deal with the unique balance of improvisation and composition that pervades jazz music. This unique situation highlighted the way that copyright law has canonized the preferences of popular American music in its copyright infringement analysis. These difficult issues called into question the traditional copyright infringement test, which looks to whether a lay listener would see the two pieces as substantially similar. Amici composers advocated that infringement actions be left to expert testimony, noting that the “difficulty of capturing the essential elements of a jazz composition on paper is widely understood.”11 Amici also questioned the use of 5. Newton v. Diamond, 388 F.3d 1189, 1191 (9th Cir. 2004). 6. Id. Newton began his career in the ’70s recording mainly avant-garde jazz music. He has also played blues and Chinese folk songs. Beginning in the ’80s Newton also toured with classical symphony orchestras, chamber groups and ballet ensembles. He has composed everything from jazz and solo flute pieces to ballets. Newton has taught at the California Institute of Arts and the University of California, Irvine. He has also published Improvising Flute (1989), a method book for flute players. Barry Kernfeld, Newton, James, in THE NEW GROVE DICTIONARY OF JAZZ, 2ND EDITION, GROVE MUSIC ONLINE, OXFORD MUSIC ONLINE. http://www.oxfordmusiconline.com/subscriber/article/grove/ music/J327700 (last visited Oct. 22, 2013). 7. Newton, 388 F.3d at 1192. 8. Id. at 1191. 9. Newton v. Diamond, 204 F. Supp. 2d 1244 (C.D. Cal. 2002). 10. Ultimately, the Ninth Circuit affirmed the lower court’s summary judgment ruling in favor of the Beastie Boys, finding that the sample did not infringe on Newton’s composition copyright. Newton, 388 F.3d at 1196-1197. 11. Brief for Meet the Composer et al. as Amici Curiae Supporting Petitioner, Newton v. Diamond, cert. denied 545 U.S. 1114 (2005) (No. 04-1219), 2005 WL 1170246, at *16. 37.2 ZAKEN NOTE FINAL (BL) (DO NOT DELETE) 1/9/2014 9:18 PM 2014] FRAGMENTED TAKINGS OF JAZZ AND EXPERIMENTAL MUSIC 285 the “ordinary reasonable person” standard when evaluating works in contemporary genres like minimalism and microtonality.12 In a decision that conflated jazz and improvisation and that strayed from the way courts typically treat copyright infringement cases, the Ninth Circuit relied on expert testimony to hold that the use of Newton’s work was de minimis and not actionable.13 The Newton case dealt with a specific subset of copyright infringement cases dealing with what Melville Nimmer has termed “fragmented literal similarity.”14 In each of these cases, the defendant exactly copied the plaintiff’s work, but only copied a small portion of the work as a whole.15 In such cases, copying is obvious and the only issue is whether the copied portion is substantial in relation to the original work as a whole.16 Where a recording infringes on a composition copyright, the courts must separate the performative from the compositional elements of the music. Courts then look to see whether the copying is quantitatively or qualitatively substantial under a test called “substantial similarity.”17 If it is not, the copying is termed de minimis and not a copyright violation. This form of infringement action is particularly important because of the prominence of sampling in modern music. This Note will use the Newton v. Diamond case to illustrate a number of problems that persist in the way that the courts treat copyright infringement actions in music. In particular, it will use Newton to illustrate the way that copyright law has canonized the common features of popular music as virtual prerequisites for protection. It will also examine how conventional attitudes about jazz and expert testimony affected the Court’s analysis of Newton’s work. In response to these deficiencies, this Note will offer a more genre-neutral approach to distinguish the protections afforded a composition copyright from those afforded subsequent performances of that composition. The most important aspect of this approach is the use of multiple performances to gauge the control that a composition has over the contents of any given recording. Finally, this Note will propose one possible framework for the proper use of expert testimony. Part I of this Note will explain the relevant aspects of jazz music, copyright law and the differences between composition and recording copyrights. Part II of this note will describe the Newton v. Diamond decision and offer a detailed discussion of the musical composition “Choir.” Part III will critique the Newton decision and suggest alternative modes of analysis for jazz and experimental music in similar cases. 12. Newton v. Diamond, 2005 WL 1170246, at *14. 13. Newton, 388 F.3d at 1197. 14. 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 13.03[A][2] (Matthew Bender, Rev. Ed.). A few courts, including the Newton court, have acknowledged this terminology. Newton, 388 F.3d at 1195; TufAmerica, Inc. v. Diamond, 12 CIV. 3529 AJN, 2013 WL 4830954 *5 (S.D.N.Y.

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