Sunday, 28 September 2008

James Newton - Axum

256+ VBR LAME mp3
Vinyl rip & scans from ECM 1-1214

Soundological submits some Sunday morning spiritual sounds for you and yours. A deeply personal album by a critically acclaimed flautist exhibiting his trademark contributions to jazz in an intimate setting, it is mostly remembered for the brouhaha with the Beastie Boys after one of the tracks was sampled
on Check Your Head with ECM's permission (mechanical) and not Newton's (publishing). Not exactly a landmark case, but it reinforced the Eurocentric bias in the US court system towards the L.C.D. of simple diatonic melody. You can read James' take on the whole deal further down the page.

AMG Review
by Scott Yanow

James Newton's set of unaccompanied flute solos is generally more intriguing and diverse than one might expect. An expert at multiphonics (often humming through his flute in order to get more than one note at a time), Newton is also very strong at constructing logical yet utterly unpredictable improvisations. His playing on nine of his originals covers a fair amount of ground, and he alternates between three different types of flutes (his regular horn, alto flute and bass flute). Still, the results are more for specialized tastes.

James Newton - Flute

1 The Dabtara
2 Malak 'Uqabe
3 Solomon, Chief of Wise Men
4 Addis Ababa
5 Choir
6 Feeling
7 Axum
8 Susenyos and Werzelya
9 The Neser

Letter From James Newton About the Decision on
Beastie Boys Sampling of His Tunes

reprinted from On Lisa Rein's Radar
To whom it may concern,

It seems like a real "Weird Nightmare" to be writing you this email. For the last two years I have been involved in a suit because the Beastie Boys sampled a part of my composition "Choir" and did not contact me for permission. They did not change in any way what they sampled from "Choir". It begins with the sampled six and a half seconds and loops in the song over forty times. "Pass the Mic'" has appeared in CD, MP3, LP, and DVD formats.

The law clearly states that to use someone else's music one must contact and receive permission from both the record company and the copyright owner. "Choir" was registered with the copyright office and ASCAP in 1978. My publishing company JANEW MUSIC controls 100% of the rights. Nevertheless the Beastie Boys only contacted and received permission from ECM Records and ignored me.

The case went up for summary judgement one month ago and Judge Nora Manella of US Federal Court ruled against me!!!!!!!!!!! She stated as a fact of law that my music was unoriginal !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! The liner notes of Axum begins with a quote from the New York Times that "James Newton is the most accomplished and original flutist now playing Jazz".The year that Axum was released (1982) was also the first year that I won the Down Beat International Critics Poll as the best jazz flutist. The judge must feel that her opinion is more significant than all of the experts in the field.

The six and a half second sample consists of three sung notes C,Db ,C and a held flute harmonic C2, as a result of the combination of voice, harmonic and a balanced distribution of each a series of shifting multiphonics are created. She ignored the multiphonics because they weren't written on the score and said that there are just three notes in the score which aren't protectable. If you go to the Beastie Boy's DVD of the piece "Pass the Mic" to signify the song their is only my flute sample and a drum beat . There is a spectrograph that moves wildly when my multiphonics are played. If there was only one pitch the movement would be minimal. She also consistently used European paradigms to judge my music. An aria from Purcell's "Dido and Aeneas" and Cole Porter's "Night and Day" were examples of what is protectable. "Choir" is about four black women singing in a church in rural Arkansas. This work is a modern approach to a spiritual. As you well know, one would be hard-pressed to find multiphonic fingerings in most jazz scores, even when multiphonics are used!!!! If I'm writing for a classical ensemble I'll write out the multiphonic fingerings because of how notation is used in that culture of music.

Spirituals come out of the oral tradition, and if they are notated they're in the most simplest form which is the way that I wrote out "Choir" On the same LP one can find "The Neser" which is influenced by Ravel and is a 8-minute work for flute quartet where everything is written out except a short alto flute cadenza. I certainly didn't become dumb when I dealt with my own culture in "Choir." The urgency of this letter is that after unjustly winning the case the Beastie Boys have filed a motion with the court for me to pay their legal fees of $492,000 after they stole my music. I have already spent a considerable amount of money for a creative musician and college professor. This would, of course, send me into bankruptcy, and I stand a chance of losing my home and all that I have worked for through the years. If you can spread the press release around to your colleagues in the European press, it will help the cause greatly. The more newspapers, magazines and journals that this is placed in will help. Please inform us of any press that appears so that we can use it in our legal endeavors. Also any of you that are heads of organizations or lawyers please contact my lawyer, Alan Korn (, and he can give you the information of where to send Amicus letters.

This decision is a dangerous one that would affect jazz composers and other composers that choose to write in other ways. I have had plenty of training to write all of my scores in the most eurocentric Boulezian fashion but why should I be forced to to please a Judge who has very limited musical knowledge, certainly little of the Afro-American musical tradition. The strain on this trial and subsequent rulings have been immense. It has curtailed much of my artistic output because of the seriousness of this situation. For many years I have tried to give much as an artist and educator to the world community. This is a time when I have to now ask for your help. I have never sued anyone in all of my years on the planet up to this point. I am fighting for my rights and the ability to express myself in my own and any other cultural perspective that I choose as an artist. Please spread this around as much as possible.

Yours in music and freedom,
James Newton

Ethical arguments aside, if you focus on the ruling itself rather than the personalities involved and their actions leading up to, during or after the trial there's only one major conclusion you can draw. Justice ain't only blind, She deaf too.

Reissued on CD in 1994 (how's that for timing on ECM's part?) which is also OOP. Like the review said, it's not exactly everyone's cup o' tea but if you like Paul Horn's Inside series or if you like your relaxing New Age sounds less newy and more agey, then you'll likely enjoy this. You never know until you try HERE or HERE.


Wallofsound said...

What a wonderful recording this is.
It's very different from other examples of Newton's music I own, but equally as enthralling.

If only the sampling had directed more people to listen, that the samplers had a little more respect for the source, and less money had been spent on musicians than lawyers. Anyway, the music made my world just a bit better!

ish said...

I've been curious about this. Thanks. I remember I tried a Newton album back in the seventies thinking he would be just like Bobbi Humphrey and was a little disappointed, heh heh. My tastes having matured we'll see...

Solomon said...

Thank you.

Tom said...


Thank you, Cheeba.

cheeba said...

wallofsound, I must say I feel you on this one but it I think it's difficult to call if you consider the history behind it all.

The hip hop culture that sampling came from was battle-oriented so secrecy was integral in the art from the get-go. DJs steamed labels off records so others couldn't read them or replaced them with fakes to send spotters on wild goose chases. How could it be any different when the artform moved from the streets to the studios? In fact, our culture and our economic models of the entertainment industry are still reeling from this event thirty years onwards.

But I agree with you in that I think once the cat was out of the bag, samplers did have a bit more of a responsibility to give credit where credit was due. If any question came up as to originality in finding the sample (fresh) and who bit it afterwards (whack), it's easy to resolve since it's all *ahem* on record.

Thanks for making my world just a bit better with your thought-provoking comment, wallofsound!

cheeba said...


ish, I can see the picture now... furrowed brow, wanting to enjoy anyway because you keep an open mind but not quite able to connect, maybe even unsure whether you were disappointed because it wasn't any good or because you didn't like it. Been there!

You're right though that lots of times you can come back later and hear what you hadn't been experienced enough to hear before - especially in minimalist pieces like this. I have to be in exactly the right headspace to listen to it but when I am and I do, I always hear something new.

Anonymous said...

Thank you very much for the download. I'm putting together a paper on music copyright vs. sampling and am making a CD for my professor, on which "Choir" can now be included.

Wallofsound: the court ruled that Newton had licensed the sampled piece to ECM, so they owned it. I don't own the Beastie Boys record to check, but I assume that somewhere the sample is listed. ECM did get $1000 for the use of the sample. The problem is that fans of the Beastie Boys aren't necessarily looking for the Newton aesthetic, but rather what the Beastie Boys do with it.

cheeba said...

Hi Anonymous, good luck with the paper.

I do own a first run copy of Check Your Head on both CD and vinyl. Neither Newton, ECM nor "Choir" is mentioned anywhere on the notes and "Pass The Mic" is credited only to Beastie Boys/Caldato. In fact, most sampled material used on that LP is unlisted.

ish said...

Another terrific and previously unknown to me Newton is over at my place thanks to a reader, "Binu" from 1977.

pcvphunk said...

Holy Moly, excellent post and also thanks for postig Newton's letter. In fact, I guess, later on Newton got his dues even from the law and it hurt the Beasties wallets pretty much. I didnt even know that they paid ECM for using the loop before. I think it's exactly like Cheebah said, the original material had to be kept secret, as far as biting and battling is concerned. Nowadays samples are mostly cleared even if it's not on the label or the liners and thats how it needs to be. Many musicians understand the crate diggin and sampling culture and artform, they even respect it and don't act so sissy about it. I can understand Newtons point from the letter and the judge is an ignorant b***h, but in the end Newtons aim was mainly the money that he did not receive and not the ideology this letter claims.
In my opinion every musician should consider it an honor to get sampled and brought back to light and presented to a wider or let's say a different audience.

E S said...

How ironic it is to be discussing this legal issue and at the same time downloading the music in question off the net. (Though thanks anyway ! ! ! )
Although if ECM is one of those labels that controls the rights of the music forever then controlfreakMEicher deserves whatever comes his way…

In the beginning, I know that many musicians recorded on his label because he kept everything in print but now lots of ECM titles are not available

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Jim T said...

Thanks for sharing this excellent music! Very much appreciated.