In December 1991, Judge Kevin Thomas Duffy ruled that rapper Biz Markie’s song “Alone Again” violated copyright law when it took a digital sample from pop star Gilbert O’Sullivan’s 1972 hit “Alone Again (Naturally).” The judge’s decision was vague, failing to address the complicated technical and artistic issues surrounding sampling. Instead of clarifying how much sampling of a song was permissible, it simply stated that the practice was illegal. The case sparked fear in the music industry and changed the way hip-hop artists created their art. From that point forward, most record companies required clearance of all samples, no matter how small. On major record labels, sampling became less of an art form and more of a legal issue, and the beautiful layered sound collages of artists such as Public Enemy gave way to long loops of legally cleared samples heard in songs such as Puffy Combs’s “I’ll Be Missing You,” which borrowed its entire melody from The Police’s “Every Step You Take.” An unintended consequence of Duffy’s ruling, however, was the rise of underground musical pastiches such as Danger Mouse’s famous mashup, The Grey Album, which mixed the Beatles’ White Album with Jay-Z’s The Black Album. I had been following the sampling issue for several years since the 1980s, writing “Name That Tune: The Embattled Art of Sampling” for Option magazine in 1989. Three years later, after the Duffy ruling, I wrote this followup. In 2006, my piece appeared in a college textbook, The Rock History Reader, and it’s been used in music-history classes ever since.
Will a recent court case kill creativity in hip-hop?
By Mark Kemp, Option, March 1992
When a New York judge quoted the Bible in his decision to grant a temporary injunction barring further sales of Biz Markie’s album I Need a Haircut last December, it sent a shock wave through the music industry. “Thou shalt not steal” were the first words of Judge Kevin Thomas Duffy’s ruling. It was a reaction to Markie’s use of a loop from the 1972 Gilbert O’Sullivan hit “Alone Again (Naturally)” in his rap song simply entitled “Alone Again.” The Markie case marks the first time sampling has ever gone before a judge — earlier cases were settled out of court — and Duffy’s words were chillingly clear and simple: If you’re going to sample from another artist’s work, you’d better get permission.
The ruling has caused a minor panic among some record companies. Top brass immediately sent down memos to the effect that all digital samples on all new albums would have to be cleared before release. But some artists who use digital samples in their work say that such a requirement would be virtually impossible to comply with; and as a legal precedent, it stands to threaten the creative process of contemporary pop music altogether.
“It’s going to affect everyone’s process,” says Hank Shocklee of Public Enemy’s production team, the Bomb Squad. “A whole chain of events will start happening: People are going to be trying like crazy to find all their sources, and records won’t come out on time. It’s impossible to keep up with every snippet of sound you use.”
Shocklee should know. Unlike Biz Markie’s song, in which a large portion of O’Sullivan’s tune was sampled and looped throughout, the Bomb Squad’s sound collages involve a veritable soup of samples. “You know how some people say The Bomb Squad uses all these samples and I can’t tell where they come from?’” Shocklee asks. “Well, we can’t tell where they come from either. You change the sound, you alter them, and then you plug them into your mix; six months down the road, after you’ve been working with all these different samples, you have no idea where every one of them came from.”
Los Angeles attorney Evan Cohen sees things differently. In 1989, Cohen represented Mark Volman and Howard Kaylan of the ’60s pop group the Turtles in a landmark lawsuit against rappers De La Soul, who had used a sample of the Turtles’ 1969 hit “You Showed Me” in their own “Transmitting Live From Mars.” (The case was settled out of court.) Cohen suggests that Judge Duffy’s decision in the Biz Markie case is a milestone for copyright holders. “It should provide the final removal of doubt as to whether the Fair Use Doctrine applies to digital sampling,” he says.
Cohen’s reference is to the Fair Use Doctrine of 1972, an amendment to the copyright law which allows for various exceptions, including appropriation of copyrighted materials for social comment, education, and other such purposes. Some observers, such as De La Soul’s attorney Ken Anderson, feel that Fair Use should apply to certain instances of digital sampling. However, Cohen sees the judge’s decision as definitive: “The judge in New York says sampling is stealing if one doesn’t ask permission beforehand.”
Anderson dismisses his colleague’s observation, calling it premature. “The Biz Markie case doesn’t even refer to Fair Use,” Anderson says. “There has not yet been a case which analyzes the copyright issues relative to sampling. We’re still waiting for that.”
SINCE IT MADE ITS WAY into popular music in the mid-’80s, digital sampling has been a highly charged issue of ownership, often pitting young, Black, inner-city experimental hip-hop musicians against older, baby-boomer pop stars of the ’60s and ’70s. The Turtles, perhaps, were the symbolically perfect ’60s group to sue for copyright infringement. They created perfectly happy melodies in an old-school pop format. Side by side, the Turtles and De La Soul represented the past and future of popular music. “We weren’t wanting to prohibit them from moving in a creative way,” says Turtle Mark Volman. “No one I know wants to stop them from being creative, but at the same time, you have to deal with legalities. It’s important that artists receive their fair share and what’s due. If someone’s using music that’s already been created and spent for, then they should pay for it. It was only a matter of time before the courts would say that.”
Still, Volman adds, “When Bob Dylan wrote that the times are a changing, hey, they still are. Music is changing, too. Rock ’n’ roll takes on so many different ways, and rap is one of them.”
Certainly, times have changed since popular groups penned simple verse-chorus-verse songs. With the advent of samplers and other technological advances, even the most mainstream popular music has become a more experimental medium. It’s now common practice to incorporate snippets of prerecorded material into songs. But hip-hop has never been the only music built around electronic samples. In the early ’80s, avant-garde musicians were playing around with sampling machines at about the same time as hip-hop DJs were, and since then, all kinds of music, from R&B and dance music to heavy metal and alternative rock, have begun using samples.
Digital sampling has been a highly charged issue of ownership, often pitting young, Black, inner-city experimental hip-hop musicians against older, baby-boomer pop stars.
But Judge Duffy’s decision stands to put a damper on such experimentation. After the decision was handed down, record companies immediately instituted their new tougher policies. “It’s much more stringent now than it had been,” says Warner publicity head Bob Merlis. “We took a lot of stuff on faith before, but now, we’re demanding proof that these things are being cleared.” Merlis admits that such policies “are going to slow things down.” Lillian Matulic of Priority Records, N.W.A’s label, agrees, saying, “We were issued a memo saying they have to clear all samples before we release anything.” A spokesman for De La Soul’s record company, Tommy Boy, who agreed to talk on condition of anonymity, says it was the process of clearing all samples that caused the year-long delay of that group’s second album, De La Soul Is Dead. “Here, we wait until everything is cleared — every drum beat, however small it is.” he says. “It’s like, why play around, right? The De La Soul vs. the Turtles situation really wised us up.”
On the surface, this sort of caution may seem obvious: if you take from Gilbert O’Sullivan, you should get Gilbert O’Sullivan’s permission. But there’s a tremendous gray area in sampling. Markie’s case indicated a clear breakdown in communication, and his attorney’s argument that it’s a common practice to go ahead and use non-cleared samples was not a real argument at all. Further evidence that Markie had sought O’Sullivan’s permission beforehand, was denied it, and then released the song anyway, seemed to make the case clear-cut. After all, when MC Hammer released “U Can’t Touch This,” whose main hook was Rick James’ 1981 hit “Super Freak,” he had obtained James’ permission, and even worked out a deal that gave James co-credit — and ultimately, big royalties.
The danger in Judge Duffy’s decision is that sampling is still not a cut-and-dried issue. Duffy, who was so oblivious to pop music that he had to be told what the term “R&B” means, didn’t address the more complex and subtle uses of sampling. As Anderson points out, sampling “is not the kind of thing that lends itself to the statement, ‘Thou shalt not steal.’ It’s a little more sophisticated than that.” Still, Anderson plays down the significance of the Markie case. “I don’t think it has any legal impact at all because it doesn’t analyze the copyright issues of whether sampling constitutes infringement.”
“Sampling is not the kind of thing that lends itself to the statement, ‘Thou shalt not steal.’ It’s a little more sophisticated than that.”
“What this case doesn’t answer are those borderline cases,” says entertainment attorney Richard P. Dieguez, who distinguishes between what he terms de minimis sampling — a short horn blast, a James Brown scream, a kick or snare drum — from what he refers to in plainer English as “the primary hook of an actual master recording.” For instance, Dieguez says, “If you deleted the sample from the Biz Markie song, you wouldn’t have anything left but Biz kind of talking to himself. That’s an obvious case. On the other hand, if you deleted any of the samples in a Public Enemy record, you’d still have a composition. I couldn’t imagine anyone getting nailed for taking a snare. The difficulty is the stuff in the middle.
“Right now,” Dieguez continues, “there’s no precedent. Some people want to believe that there’s a set number of bars that’s allowable, but that’s just not true. It doesn’t matter how many bars of a song are taken. It’s an ad hoc judgment. No one can come up with a blanket rule.”
“IT’S IMPOSSIBLE,” says Hank Shocklee of the possibility that he would have to account for all the sounds on a Public Enemy record. “I look at rap culture — and R&B culture, too — as becoming more of a scavenger culture,” he says. “After a while, you start mixing it all together, mixing all the colors together, and you lose the source. I think that’s what’s good about it, the way it evolves into something else. I like that aspect of it.”
Accordingly, Shocklee doesn’t consider the Markie case a sampling issue, per se. “Biz did a cover of a song,” he says. “People confuse that issue. A sample’s when you take a snippet. Biz didn’t just sample it, he took a hunk of it.” Shocklee ultimately blames higher-ups for allowing the song to get out without clearance in the first place. “It goes to show how little record executives know about the music they put out. It shows that either they don’t care about the music or that they don’t know about it. And now that the Biz Markie song got past them, they’re trying to cover their tails. Now, you’re going to be asked to account for every snippet, and that’s just not possible.”
“I totally disagree,” says DJ Daddy-O of Stetsasonic. “That’s just a bunch of bullshit.” Daddy-O has put his own group on hold for the moment because he’s become a producer very much in demand lately, working on various records by hip-hop and R&B artists, including Queen Latifah, as well as remixes for rock bands, such as Sonic Youth and the B-52s. Daddy-O believes that the Biz Markie case should make DJs more responsible, that it should encourage those who sample to go beyond the mere looping of familiar songs. “Every DJ in the world knows what records he uses.” Daddy O says. “So for Hank to sit there and say, ‘Six months down the road, when I’m working with the Bomb Squad, I don’t know what I use,’ that’s bullshit. You’re making records, you have to be responsible for where your material comes from.”
But there’s a distinction between Shocklee’s technique and the approach taken by those who merely loop songs. And Daddy-O is somewhat sensitive to this. “I actually kind of understand what he’s saying, though, because Public Enemy’s music works in a different way, sort of like a painting,” Daddy-O says. “What happens in the mix is the same thing that happens with paint — after a while some of the stuff starts blending together in the background, creating a foundation. So it’s hard to tell what’s there. It’s like when you blend green with yellow: you get something very different. That’s what happens in a PE mix. But I think people should still be aware of where their stuff is coming from.
“In fact, we as rap artists have got to start getting beyond what we’ve done in the past,” Daddy-O adds. “We need to think about making classic records, like all the classic rock and R&B records of the past. We need to be making records that people are happy with and not saying, ‘Oh, all they’re doing is stealing samples.’ Look at what’s happening in rock. Today, with the technology we have, you don’t need guitars to make music. Yet look at what happened with the Nirvana record. And there’s no reason that record should not have gotten as far as it did. It’s a great record. Everything about it is right — it’s got the melodies and it’s got the power. It’s just right. And it’s regular old guitar rock. That’s the level that our music should be going, and that’s what we should be striving for.
“The Biz Markie situation was a stupid move,” Daddy-O continues, “but everything happens for a reason. I think, in a way, it’s good, because now it’s going to make people start looking towards the future, looking towards that next level.”