Thou Shalt Not Steal
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The 1991 Grand Upright v. Warner Bros. Records copyright infringement case defined the fate of sampling artists in the music industry. With the statement—thou shalt not steal—Judge Kevin Duffy ruled against sampling, setting it as a precedent that would echo for years later.
Grand Upright Music Ltd. v. Warner Bros. Records Inc.
Gilbert O'Sullivan's "Alone Again"
Biz Markie's "Alone Again"
“The musical portion of the song consists of a digital sample of the first eight bars of Gilbert O'Sullivan's "Alone Again (Naturally)," comprising about ten seconds of music. This sample is continually looped so that the same ten seconds of music are heard over and over for the length of the song. Biz raps over this background, repeating variations of the titular phrase as a chorus. Completing the track is a simple drum beat.” (Falstrom 362)
The court had an opportunity to provide much-needed guidance to samplers and the lawyers who represented them. But in a terse four-page opinion, United States District Court Judge Kevin Duffy granted Grand Upright’s injunction and referred the defendants—Biz, his publisher, his producers, and his record label, among other entities—to the United States Attorney for possible criminal prosecution.
Duffy’s decision normalized the exorbitant rates for sampling licenses and forced sampling artists to reduce the amount of sampling in their music.
Duffy’s ruling informed by race and class prejudice, was well in line with the ‘common sense'” (Derecho 25) and the Culture Wars plaguing America in the mid-to-late-eighties. Talking about “common sense”, Derecho argues that “most cultural censorship campaigns, which claimed to be rooted in basic common sense, were in fact efforts to unite America under a more common culture than existed following the divisive sixties and seventies.” (25) However, this need for unity was based on the assumption that the influence of minority (primarily Black) cultural discourse had to be minimized in order to make American culture “safe” (26).
This racist attitude is apparent in how Duffy handled the case and his ruling. He began his opinion by citing scripture—“Thou shalt not steal” (Derecho 47)—which, according to Flastrom was the only reference to any authority or precedent (364) and ended it by declaring that “Markie had violated ‘not only the Seventh Commandment, but also the copyright laws of this country.” (Derecho 47)
These statements bear the hallmarks of pro-censorship rhetoric prevalent in the late 1980s and early 1990s – explicit references to Christianity, a moralizing tone, and an express belief that a male African American maker of offensive culture (hip hop), can and should be punished as a criminal.
Here’s what Duffy decided:
Plaintiff (or the guy suing) – Grand Upright Music Ltd.
Defendant (or the guy defending) – Warner Bros. Records, Inc.
In March 1991, the artist Biz Markie digitally sampled Gilbert O’Sullivan’s “Alone Again (Naturally)” and recorded the song “Alone Again” for his album I Need a Haircut. Before the record was released, Biz’s attorney forwarded a cassette tape of the song to O’Sullivan’s team seeking permission to use the sample. However, before O’Sullivan’s team could respond, Warner Bros. Records released I Need a Haircut.
O’Sullivan’s team filed a suit against Biz claiming copyright infringement and filed an injunction to Biz’s song.
Here is what the songs sounded like:
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Duffy’s decision had a two-fold result:
On one hand, his ruling “manifested by a renewed round of litigation” by other artists and labels created a “noticeably more hostile climate for samplers.” (Falstrom 367)
On the other hand, “hip-hop’s revenues increased exponentially after Judge Duffy ruled that unlicensed sampling is illegal. What seems to have been of greatest importance was that hip-hop successfully launched itself as a product in the minds of consumers.” (Derecho 29-30)
While Duffy’s ruling stands as a precedent to music sampling infringement cases, many courts are now realizing that laws from 1976 are not equipped to keep up with the advances in technology and the changes in digital culture. They are adjusting their point of view in favour of sampling artists, but we still have a long way to go.
So, does fair use ever work?
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