Newton

ORDER

1) GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

2) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

The Beastie Boys, an alternative rock and hip-hop band, and their business asso- dates (“Defendants”) sampled a six-second, three-note sequence of a flute composition composed and performed by James W. Newton, Jr. (“Plaintiff’). Plaintiff concedes that Defendants licensed the sound recording of his work, but alleges that Defendants’ use of the sample infringed upon the underlying musical composition. Both parties have filed motions for summary judgment.

II. FACTS

This case involves sampling. “The practice of sampling portions of pre-existing recordings and compositions into new songs is apparently common among performers of the genre known as rap.... Musicians sample pre-existing works either digitally, by lifting part of a song from a pre-existing master recording and feeding it through a digital sampler, or by hiring musicians who re-play or re-sing portions of the pre-existing composition.” Williams v. Broadus, No. 99 Civ. 10957 MBM, 2001 WL 984714 , at *1 n. 1 (S.D.N.Y. Aug.27, 2001).

Plaintiff, a flautist and composer, is the sole author of the…