The Properties of Sound Rap, Sampling, and the Legacy of Grand Upright Music, Ltd. v. Warner Bros. Records Inc. Adam Gerchick

Background of the Case In 1972, Irish musician Gilbert O’Sullivan produces “Alone Again (Naturally)” Song becomes popular, rising to fifth position on Casey Kasem’s Top 40 Hits In 1991, rapper Biz Markie releases “Alone Again” in album “I Need A Haircut” Song generally unpopular Markie samples both underlying melody and recorded words “alone again, naturally” from O’Sullivan Raps over it about being stood up and unsupported by others in daily life

The Case In 1991, Grand Upright Music, Ltd. sues Markie’s ultimate producers, Warner Bros. Records Inc., in Southern District of New York Claims current ownership of O’Sullivan’s trademark Seeks financial damages for use of sampled clips Grand Upright shows that Markie and producers inquired about permission to use lyrics but were rebuffed by O’Sullivan Markie argues sampling is industry standard and that use of O’Sullivan’s work was limited Claims include fair use and de minimis standards Case goes before U.S. District Judge Kevin Thomas Duffy Key question seems to be legitimacy of limited sampling without license

The Verdict Duffy rules firmly for the plaintiffs Begins opinion with “Thou shalt not steal” Judge dispatches with question of legitimacy of sampling, including implied fair-use and de minimis claims “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 only issue… seems to be who owns the copyright to the song ‘Alone Again (Naturally).’” Duffy finds Markie’s own prior license request damning “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!”

Grand Upright’s Immediate Impact Duffy orders Markie and Warner Bros. to pay royalties and damages to Grand Upright Issues preliminary injunction against record Refers case to U.S. Attorney for S.D.N.Y. for criminal prosecution Markie’s album pulled from market Warner immediately begins review of all licensing procedures for similar use and sampling

Grand Upright’s Greater Legacy Decision makes future use of intensive sampling economically unviable for most artists Allows minor or unsuccessful records to leverage their popularity as samples for extraordinary royalties Producers like Public Enemy and Dr. Dre affected in limits on ability to produce Double-edged sword: not only are samples more expensive, but copyright owners can deny use if they dislike intended production Threat to artistic creativity and public use Establishment of more formalized regime for sampling use Decision essentially affirmed in Bridgeport Music v. Dimension Films (2005), in which 6th Circuit strikes de minimis claims

Fair Use, Ownership, and Expression Case raises fundamental questions about extent of musical ownership How much control can a copyright bearer exert over “impressionistic” reproductions of work? What constitutes “fair use” and artistic expression vs. pure profit-seeking? Producers now often attempt to sidestep issue by performing own versions of earlier works Line between original production and recreation in the law? Even if new work legal, burdened by bureaucratic, cost limitations Establishment of a grandfathered class of producers and rappers

Citations Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005) Falstrom, Carl A. “Note: Thou Shalt Not Steal: Grand Upright Music Ltd. v. Warner Bros. Records, Inc. and the Future of Digital Sound Sampling in Popular Music.” University of California, Hastings College of Law Hastings Law Journal, JANUARY, 1994, 45 Hastings L.J. 359. Grand Upright Music, Ltd. v. Warner Bros. Records Inc., 780 F. Supp. 182 (S.D.N.Y. 1991) “Grand Upright v. Warner.” Copyright Infringement Project. UCLA Law and Columbia Law School. 2005. <http://cip.law.ucla.edu/cases/case_grandwarner.html>. Accessed December 1, 2010. Hall, Marcel Theo (a.k.a. “Biz Markie”). “Alone Again.” I Need A Haircut. Song. August 27, 1991. YouTube. Accessed December 2, 2010. Kaplice, Brett I. “Note: Rap Music and De Minimis Copying: Applying the Ringgold and Sandoval Approach to Digital Samples.” Yeshiva University Cardozo Arts & Entertainment Law Journal, 2000, 18 Cardozo Arts & Ent LJ 227. Leach, Eric. “Note and Comment: Safe Sound: Protecting Digital Sample-Basd Products Through Copyright.” Whittier Law Review Whittier Law Review, Summer, 1998, 19 Whittier L. Rev. 805. Min, Lisa B. “Case Note and Comment: Clarity to Litigation Concerning Digitally Sampling Sound Recordings: Get a License or Do Not Sample – The Bridgeport Music Decision.” DePaul University Journal of Art and Entertainment Law, Spring, 2005, 15 DePaul-LCA J. Art & Ent. L. 329. O’Sullivan, Raymond Edward “Gilbert.” “Alone Again (Naturally).” Song. February 1972. YouTube. Accessed December 2, 2010.