If an average listener couldn't hear the alleged samples, then the tracks must not have "substantial similarity."
Now, the Beastie Boys have asked a judge to dismiss the lawsuit, according to the Hollywood Reporter, which shouldn't come as a surprise. What's shocking to a non-lawyer is the seeming obviousness of their argument.
First, the Beasties say that if the alleged samples from go-go band Trouble Funk on 1986's Licensed to Ill and 1989's Paul's Boutique really couldn't be heard except "after conducting a careful audio analysis," then "there can be no substantial similarity" between the Beasties' tracks and their alleged unauthorized sources. In other words, if you can't even hear a similarity between the tracks, then it's preposterous to argue in court that the tracks are so similar that someone owes you money. Makes sense, right?
Second, the Beasties' lawyers reportedly argue that even if they can be held liable for copyright infringement based on similarities no one can actually hear, the statute of limitations passed long ago. Like, before Justin Bieber was even alive. Under the Copyright Act, there's a three-year window for copyright infringement claims, which usually begins when the infringement should've been discovered. The Beasties' lawyers correctly note that "the songs 'Hold It Now Hit It,' 'The New Style,' 'Shadrach,' and 'Car Thief' are hip hop classics and have been played for nearly a quarter of a century in concerts, on the radio, by the public and in public venues." Where was Tuf America all this time?
To be clear, Tuf America does have precedent for arguing that copyright was infringed by samples that were inaudible for years and years. As THR points out, a company called VMG Salsoul, which owns the rights to the classic disco label Salsoul, is claiming that Madonna also undetectably sampled the Salsoul Orchestra's 1975 track "Chicago Bus Stop (Ooh, I Love It)" for her 1990 hit "Vogue" and therefore owes damages. Like the Beastie Boys, Madonna has argued that if the sampling took place, which she denies, then the works couldn't be "substantially similar" if listeners couldn't hear the alleged similarity.
VMG Salsoul, whose parent company Verse Music Group says on its Facebook page it's in the business of buying rights to other people's music, has a counter-argument: The company responded that the producer incorporated the alleged sample& "in such a way that the fact that it was sampled was disguised, not that the sounds and music of Plaintiff's sound recording itself were somehow hidden." So if we're understanding correctly, they're saying that even though the two tracks have no substantial similarities most of us can hear, the substantial similarities do exist — it's just the fact that they're similar due to sampling that was hidden. And this, children, is why we didn't go to law school.
A subsidiary of Tuff City Records, Tuf America is generally described in reports about the lawsuit as a record label, but like Verse Music Group, it isn't known for releasing music. In fact, Tuf America's website lists only four releases. The brand was founded by journalist Aaron Fuchs, who told Billboard in 1994, "Here I was making money from sample clearances while the average publishing person was still looking for that next 'Just the Way You Are.'" The company, which we've also seen stylized as TufAmerica and Tufamerica, recently sued Kanye West for alleged illegal samples on 2010's My Beautiful Dark Twisted Fantasy. The Beasties case isn't Tuf America's first, um, rodeo.
In fact, the Beastie Boys and Kanye West can claim common cause with LL Cool J and EPMD. Both have been targets of Tuff City copyright infringement lawsuits, according to the late scholar William Eric Perkins in his 1996 book Droppin' Science. We've quoted this before, but Perkins' words from 1996 remain resonant, especially considering the legal and financial impossibility of recording another Paul's Boutique today: "If Fuchs wins this suit, recording and producing rap as we now know it would become financially impossible, given the prohibitive costs of clearing rights to use samples." Here's hoping the judge is a hip-hop head.