Two Million Dollars in Damages Later...

To commemorate the 50th anniversary of the advent of hip hop music, it is wise to consider the enormous impact sampling - edited and looped snippets from other recordings - has had on the character and cash flow of that genre. Aside from lascivious boasting and roasting, hip-hop lives and dies by beats and recognizable sonic filigree. In its salad days, hip hop artists would string together the instrumental breaks in classic funk and disco records and rap over them. When cheap digital samplers became available, artists could edit choice snippets of beats and instrumental parts and loop them into extended mixes. For the first decade of hiphop, the plundering of impeccably produced old school grooves seemed to be risk free. Artists like Grand Master Flash and the Beastie Boys larded their records with dozens of uncleared samples.

Then the other expensive sneaker dropped. I offer this quote from Judge Kevin Duffy who presided over Grand Upright Music v. Warner Brothers Music, a 1991 trial that arguably has had the greatest impact on the creative process of hip-hop recording and its nettlesome place in popular music.

"Thou shalt not steal."[1] has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed. Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country.

The defendant in question was the legendary rapper, Biz Markie. The plaintiff was the composer Raymond “Gilbert” O’Sullivan who had a number of easy listening hits in the 70’s including “Alone Again (Naturally).” The former had used a sample of the latter’s music without paying for the rights.

Judge Duffy has his fun detailing how Markie and his crew knew they were playing with fire. “Prior to the time that Biz Markie's album was released,” he writes, “the various defendants apparently discussed among themselves the need to obtain a license. They decided to contact O'Sullivan and wrote to his brother/agent, enclosing a copy of the tape. In this letter, an attorney for the defendant states:

This firm represents a recording artist professionally known as Biz Markie, who has recorded a composition for Cold Chillin' Records entitled "Alone Again" which incorporates portions of the composition entitled "Alone Again Naturally" originally recorded by Gilbert O'Sullivan (the "Original Composition").

Biz Markie would like to obtain your consent to the use of the "Original Composition."

“In writing this letter,” Duffy continues, “counsel for Biz Markie admittedly was seeking "terms" for the use of the material. One would not agree to pay to use the material of another unless there was a valid copyright! What more persuasive evidence can there be!”

Shortly after this decision, more and more aggrieved artists stormed the pirate ship of hip-hop. Allegedly, De La Soul paid out almost two million dollars in damages for uncleared samples that appeared on their landmark album, “Three Feet High and Rising.” Almost thirty years after its release, the album is finally available on Spotify primarily because someone coughed up the loot to clear some of those samples and the band re-recorded certain tracks without the samples.

Courts in different federal circuits began to entertain either a nuanced analysis of infringement or a brightline standard. Some courts considered the qualitative and quantitative nature of the sample in the context of the entire original composition. Was the sample the “essence” of the song or a peripheral element? A good example of this might be the highly recognized sample of “Ventura Highway” by America as it appears in Janet Jackson’s song, “Someone to Call My Lover.” Other courts simply saw sampling as “taking something of value” that belonged to someone else. Get a license or buzz off empty-handed.

Not surprisingly, artists must now factor sample clearance costs into their production budgets. And they list sampled artists as actual songwriters. It’s not uncommon to find hip-hop artists listing a hundred or more songwriters on their albums. A single track might have 20 different credits. One could argue that the fear of litigation might unfairly chill an artist’s creativity and force them to openly admit their fear, hardly a transgressive posture that was once part of hip-hop’s renegade appeal. On the other hand, second thoughts about sampling might drive artists to compose less derivative and gimmicky work.

Audiences have turned the whole process into a sort of game and, more importantly, a magic carpet ride down the rabbit hole of music discovery. Websites such as WhoSampled.com allow listeners to track down an earworm that sounds vaguely familiar but they can’t place, like this sample from Aphrodite’s Child album, “666” that appears in a Danny Brown track. This sonic version of genealogical sleuthing highlights the importance of every artist making sure that they get full credit for their contribution to any song and that song credit travels everywhere where money is to be made.