Hey, that's my song pay up; Music: Ralphe Armstrong is claiming copyright infringement on a song he recorded in the '70s. The case involves the issue of how much music artists can borrow from others to create new songs.

THE BALTIMORE SUN

DETROIT -- It was early April 1996 and Ralphe Armstrong was relaxing in his Detroit home. A commercial for Adidas athletic shoes flashed across the TV screen. The rap soundtrack immediately caught his ear. Man, that's a hip drumbeat, he thought. Then a high falsetto vocal chimed in on top of the drums -- "hey, hey, hey, hey."

"I listened and said, 'That's a weird-sounding voice,' " Armstrong recalls. "Then I listened again and said, 'Huh, that sounds familiar.' The third time I listened, I almost fell out of the bed -- 'That's me singing on this commercial!' "

And so began the oddest episode in Armstrong's career, a labyrinthine tale involving lawyers, lawsuits and two recordings -- a 1976 LP by John McLaughlin's Mahavishnu Orchestra, and a 1991 CD by Massive Attack, a critically acclaimed English rap group.

Other characters in this drama, aside from Adidas, include a major record company and a Hollywood film studio. The story opens a window on the sometimes grimy world of the pop music industry, and in the end it might make Armstrong very wealthy.

Many defendants

Armstrong, 42, has filed suit in U.S. District Court in New York claiming that Massive Attack infringed on his copyright by unlawfully sampling -- electronically copying bits of sound from a recording -- a composition he wrote and recorded in the '70s with the Mahavishnu Orchestra, one of the era's premier jazz-fusion bands.

The suit claims that the Massive Attack song "Unfinished Sympathy" on its album "Blue Lines" includes passages lifted from Armstrong's "Planetary Citizen," which appears on the Mahavishnu album "Inner Worlds."

More than a dozen defendants are named in the lawsuit, including the three people in Massive Attack, two producers, the American and British divisions of Virgin Records, several publishing companies, Adidas and the shoe company's ad agency.

Profit share at stake

If Armstrong wins in court, he would be entitled to a share of the profits Massive Attack and the record company made from the song -- both from CD sales and live concert performances. Armstrong would also be entitled to publishing fees and licensing fees -- and possibly shoe-company profits attributable to the TV commercial. Settlements in similar cases have netted plaintiffs hundreds of thousands of dollars.

Armstrong, whose resume also includes touring or recording with Frank Zappa, Jean-Luc Ponty, Aretha Franklin, Earl Klugh, Eddie Harris and Geri Allen, contacted an attorney soon after hearing himself on the television commercial.

After some research, he discovered that "Unfinished Sympathy" had also been licensed to Paramount for the soundtrack of the 1993 film "Sliver." The song appears as the backdrop for a steamy sex scene between Sharon Stone and William Baldwin. Armstrong has already reached an out-of-court settlement with Paramount for the use of the song. The terms are protected by a confidentiality agreement.

"It's just like being robbed." says Armstrong. "Not at gunpoint, but it's insulting. Some people say it's to glorify your art, but it doesn't glorify anything to me. It makes me mad because they stole it."

Hearing drumbeat

Armstrong says that Massive Attack copied a distinctive drumbeat, a short bass fragment and two key melodic phrases from his original, the first comprising the words "hey, hey, hey, hey" and the second "are you ready?"

"They sampled a readily identifiable portion of Ralphe's composition as he had performed it with his vocal performance," says his lawyer, Robert Osterberg. "Then what they did was to loop it and make it the dominant part of the Massive Attack recording,"

Attempts to reach Massive Attack for comment through its record company were unsuccessful. Lawyers for the other major defendants, Virgin and Adidas, said their companies will not comment on pending litigation.

Copyright law says that in order to prevail, Armstrong must prove there is a "substantial similarity" between his original composition and Massive Attack's song. The test is whether an average observer would recognize that elements of Massive Attack's song were copied from Armstrong's original.

The law allows minimal use of copyrighted material without permission, but the courts have not specified an exact amount; the law also says a copyrighted work may be used for criticism, comment, reporting, teaching or research.

Copyright experts say that the length of a sample is less important than whether it reproduces the heart of a song, which might be as little as a bar or two of music.

Three words: violation

In a key 1991 case in New York, a federal judge ruled against

rapper Biz Markie for sampling only three words from Gilbert O'Sullivan's '70s pop song "Alone Again (Naturally)." The judge opened his opinion with a quote from the Bible: "Thou shalt not steal."

Since the Biz Markie case, record companies and artists have generally become more careful about seeking permission to sample the material of others. But lawsuits have also become more common, with all but a few settling out of court.

Defendants in sampling cases typically argue that the music copied either isn't original or the amount sampled is so small that the new work is different overall from the other. Larry Iser, a music and copyright lawyer in Los Angeles, says that Massive Attack could claim that Armstrong's "hey, hey, hey, hey" refrain has been part of the public domain since early rock 'n' roll. But the other sampled phrase -- "are you ready" -- will be a tougher fight.

"Once you've sampled a lyric that's something more than 'hey, hey, hey' or 'yeah, yeah, yeah,' you're much more likely to sustain the claim that a substantial piece of the original lyric was infringed," Iser says.

Massive Attack might also claim that the drumbeat it sampled should not be considered part of Armstrong's composition. The courts have traditionally protected melody and lyrics, but rhythm is a murky issue. There is a line of cases suggesting rhythm cannot be copyrighted. But some lawyers also say that a drumbeat could be so unique -- especially in rap music where songs are often just lyrics and rhythm -- that it might qualify as composition.

There is one more distinction important to Armstrong's case. Two separate copyrights are in play. Armstrong owns the copyright on the song "Planetary Citizen," but Sony owns the copyright on the Mahavishnu Orchestra album, the performance. So just because Massive Attack sampled Armstrong's voice, it doesn't mean his copyright was infringed.

Small cost passed up

Licensing the song legitimately would have cost Massive Attack and Virgin Records a fraction of what they might end up paying in the end -- one copyright lawyer says $5,000 to $10,000 would not have been an unreasonable sum for the rights to sample "Planetary Citizen" on a CD.

Armstrong was just 19 years old when he wrote and recorded "Planetary Citizen," a souped-up funk tune with lyrics dedicated to world peace through love. It's an odd twist of fate that a song with such noble intentions should end up at the center of controversy.

It could take several years for the lawyers to slug it out, but Armstrong says he's prepared to wait for what he believes is his fair share.

"I don't care how long it takes," he says. "I have patience, and I'll just keep taking my vitamins. It's my product."

Pub Date: 9/05/98

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