What the Dog Saw: And Other Adventures

3.

In 1992, the Beastie Boys released a song called “Pass the Mic,” which begins with a six-second sample taken from the 1976 composition “Choir” by the jazz flutist James Newton. The sample was an exercise in what is called multiphonics, where the flutist “overblows” into the instrument while simultaneously singing in a falsetto. In the case of “Choir,” Newton played a C on the flute, then sang C, D-flat, C – and the distortion of the overblown C combined with his vocalizing created a surprisingly complex and haunting sound. In “Pass the Mic,” the Beastie Boys repeated the Newton sample more than forty times. The effect was riveting.

In the world of music, copyrighted works fall into two categories – the recorded performance and the composition underlying that performance. If you write a rap song, and you want to sample the chorus from Billy Joel’s “Piano Man,” you have to first get permission from the record label to use the “Piano Man” recording, and then get permission from Billy Joel (or whoever owns his music) to use the underlying composition. In the case of “Pass the Mic,” the Beastie Boys got the first kind of permission – the rights to use the recording of “Choir” – but not the second. Newton sued, and he lost – and the reason he lost serves as a useful introduction to how to think about intellectual property.

At issue in the case wasn’t the distinctiveness of Newton’s performance. The Beastie Boys, everyone agreed, had properly licensed Newton’s performance when they paid the copyright recording fee. And there was no question about whether they had copied the underlying music to the sample. At issue was simply whether the Beastie Boys were required to ask for that secondary permission: was the composition underneath those six seconds so distinctive and original that Newton could be said to own it? The court said that it wasn’t.

The chief expert witness for the Beastie Boys in the “Choir” case was Lawrence Ferrara, who is a professor of music at New York University, and when I asked him to explain the court’s ruling, he walked over to the piano in the corner of his office and played those three notes: C, D-flat, C. “That’s it!” he shouted. “There ain’t nothing else! That’s what was used. You know what this is? It’s no more than a mordent, a turn. It’s been done thousands upon thousands of times. No one can say they own that.”

Ferrara then played the most famous four-note sequence in classical music, the opening of Beethoven’s Fifth: G, G, G, E-flat. This was unmistakably Beethoven. But was it original? “That’s a harder case,” Ferrara said. “Actually, though, other composers wrote that. Beethoven himself wrote that in a piano sonata, and you can find figures like that in composers who predate Beethoven. It’s one thing if you’re talking about da-da-da dummm, da- da-da dummm – those notes, with those durations. But just the four pitches, G, G, G, E-flat? Nobody owns those.”

Ferrara once served as an expert witness for Andrew Lloyd Webber, who was being sued by Ray Repp, a composer of Catholic folk music. Repp said that the opening few bars of Lloyd Webber’s 1984 “Phantom Song,” from The Phantom of the Opera, bore an overwhelming resemblance to his composition “Till You,” written six years earlier, in 1978. As Ferrara told the story, he sat down at the piano again and played the beginning of both songs, one after the other; sure enough, they sounded strikingly similar. “Here’s Lloyd Webber,” he said, calling out each note as he played it. “Here’s Repp. Same sequence. The only difference is that Andrew writes a perfect fourth and Repp writes a sixth.”

But Ferrara wasn’t quite finished. “I said, let me have everything Andrew Lloyd Webber wrote prior to 1978 – Jesus Christ Superstar, Joseph, Evita.” He combed through every score, and in Joseph and the Amazing Technicolor Dreamcoat he found what he was looking for. “It’s the song ‘Benjamin Calypso.’” Ferrara started playing it. It was immediately familiar. “It’s the first phrase of ‘Phantom Song.’ It’s even using the same notes. But wait – it gets better. Here’s ‘Close Every Door,’ from a 1969 concert performance of Joseph.” Ferrara is a dapper, animated man, with a thin, well-manicured mustache, and thinking about the Lloyd Webber case was almost enough to make him jump up and down. He began to play again. It was the second phrase of “Phantom.” “The first half of ‘Phantom’ is in ‘Benjamin Calypso.’ The second half is in ‘Close Every Door.’ They are identical. On the button. In the case of the first theme, in fact, ‘Benjamin Calypso’ is closer to the first half of the theme at issue than the plaintiff’s song. Lloyd Webber writes something in 1984, and he borrows from himself.”

In the “Choir” case, the Beastie Boys’ copying didn’t amount to theft because it was too trivial. In the “Phantom” case, what Lloyd Webber was alleged to have copied didn’t amount to theft because the material in question wasn’t original to his accuser. Under copyright law, what matters is not that you copied someone else’s work. What matters is what you copied, and how much you copied. Intellectual-property doctrine isn’t a straightforward application of the ethical principle “Thou shalt not steal.” At its core is the notion that there are certain situations where you can steal. The protections of copyright, for instance, are time-limited; once something passes into the public domain, anyone can copy it without restriction. Or suppose that you invented a cure for breast cancer in your basement lab. Any patent you received would protect your intellectual property for twenty years, but after that anyone could take your invention. You get an initial monopoly on your creation because we want to provide economic incentives for people to invent things like cancer drugs. But everyone gets to steal your breast-cancer cure – after a decent interval – because it is also in society’s interest to let as many people as possible copy your invention; only then can others learn from it, and build on it, and come up with better and cheaper alternatives. This balance between the protecting and the limiting of intellectual property is, in fact, enshrined in the Constitution: “Congress shall have the power to promote the Progress of Science and useful Arts, by securing for limited” – note that specification, limited – “Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

4.

So is it true that words belong to the person who wrote them, just as other kinds of property belong to their owners? Actually, no. As the Stanford law professor Lawrence Lessig argues in his book Free Culture:

In ordinary language, to call a copyright a “property” right is a bit misleading, for the property of copyright is an odd kind of property… I understand what I am taking when I take the picnic table you put in your backyard. I am taking a thing, the picnic table, and after I take it, you don’t have it. But what am I taking when I take the good idea you had to put a picnic table in the backyard – by, for example, going to Sears, buying a table, and putting it in my backyard? What is the thing that I am taking then?

The point is not just about the thingness of picnic tables versus ideas, though that is an important difference. The point instead is that in the ordinary case – indeed, in practically every case except for a narrow range of exceptions – ideas released to the world are free. I don’t take anything from you when I copy the way you dress – though I might seem weird if I do it every day… Instead, as Thomas Jefferson said (and this is especially true when I copy the way someone dresses), “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”

Lessig argues that, when it comes to drawing this line between private interests and public interests in intellectual property, the courts and Congress have, in recent years, swung much too far in the direction of private interests. He writes, for instance, about the fight by some developing countries to get access to inexpensive versions of Western drugs through what is called parallel importation – buying drugs from another developing country that has been licensed to produce patented medicines. The move would save countless lives. But it has been opposed by the United States not on the ground that it would cut into the profits of Western pharmaceutical companies (they don’t sell that many patented drugs in developing countries anyway) but on the ground that it violates the sanctity of intellectual property. “We as a culture have lost this sense of balance,” Lessig writes. “A certain property fundamentalism, having no connection to our tradition, now reigns in this culture.”

Even what Lessig decries as intellectual-property extremism, however, acknowledges that intellectual