Today in 1991: Federal court rules on hip hop music sampling

December 17, 2010

Today in Legal HistoryMusic sampling – the practice of taking a snippet of recorded sound and using it in another artistic work – has been around for decades, but the hip hop artists of the 1980s and 1990s embraced it as a cornerstone of their musical style.

Unlicensed sampling was common in the hip hop community until this day in 1991, when a federal judge put the kibosh on the industry practice of selling sample-laden recordings now and settling with the copyright owner later, if at all.

Hip hop musician Biz Markie had sampled a snippet from “Alone Again (Naturally),” a melancholy pop tune by Gilbert O’Sullivan that hit the top of the U.S. charts in 1971. O’Sullivan sued, and the case came before Judge Kevin Duffy of the U.S. Federal Court for the Southern District of New York.

The judge’s opinion in Grand Upright Music Ltd. v. Warner Bros. Records Inc. was notable for its accusatory style and biblical references. Here’s how it begins:

“Thou shalt not steal” 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.

After an exploration of the facts in the case, the judge explains his decision.

From all of the evidence produced in the hearing, it is clear that the defendants knew that they were violating the plaintiff’s rights as well as the rights of others. Their only aim was to sell thousands upon thousands of records. This callous disregard for the law and for the rights of others requires not only the preliminary injunction sought by the plaintiff but also sterner measures.

The judge went on to refer the matter to the New York attorney general for possible criminal prosecution (an unusually harsh step).

After this landmark copyright case, record companies began to clear the rights for all samples up front – a time-consuming and often expensive process. As a result, hip hop artists have adopted another practice, “interpolation,” in which instrumentalists are hired re-record the portions of the song that the artist wants to use. The benefit? Interpolated tracks only require payment to the original songwriter, not the record label.