What the Dog Saw [95]
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