How Copyright Changed Hip Hop

In 1991 a major shift in Hip Hop took place after the Grand Upright Music, Ltd. v. Warner Bros. Records Inc. case effectively banned the standard sampling practices of the day, this has had a lasting impact on the way Hip Hop music is produced and copyright law at large.

1991. The year that brought us the Rugrats, the fall of the Soviet Union, and the golden era of sample based music. The hip-hop records from the early ’90s were stacked with samples. At the time, sampling was the norm, any producer worth their salt had to show that they could flip a record into their own unique vibration. From the MC to the producer hip-hop was all about self expression. Which is why so many of these records are seen as masterpieces today. But what happens when the person being sampled didn’t approve?

I Need a Haircut by Biz Markie had a radio cut called Alone Again, that sampled a song by the same name that was popular in the ’70s. Biz has made this record himself by layering a popular drum break over a loop of the first 10 seconds of the song. We know that Biz had actually chosen to mail Terry O’Sullivan, the brother of songwriter Gilbert O’Sullivan, to ask for his blessing before the album released. But ultimately — it wouldn’t make a difference because the album was released before seeing a response back.

So, after hearing the record, the O’Sullivan brothers were really just outraged. In the mind of Gilbert O’Sullivan he was seeing his work as high class and serious. Which are two things he thought that Biz’s song wasn’t. So that resulted in a letter to Biz’s attorney demanding the song be removed from future pressings, and alternatively he could pull the record from store shelves entirely.

From Biz’s perspective this was completely unreasonable. To him sampling was a standard practice in the industry, and an art form in itself. But of course, the O’Sullivans disagreed about that, so Terry O’Sullivan claimed that immediately after the record’s release he was contacted over the phone by Biz’s attorney who apologized to Terry — saying that it was Biz’s decision to release the album before receiving permission. But according to Biz and his attorney. Terry’s recollection of events were a complete fabrication. They claimed that this call never happened. And it was actually Warner Bros. who released the record without Biz’s consent.

With both parties thinking they’re in the right, the O’Sullivan brothers took Biz to court… and it wasn’t close, at all. To get across just how in favor of the O’Sullivans the judge was, I’m going to quote the Hastings Law Journal’s and their analysis on the topic.

“[Judge Kevin Duffy’s] first four words – ‘Thou shalt not steal’- contain the opinion’s first and only reference to any authority or precedent. To the court, sampling equaled theft. And Biz had already admitted to using the sample.”

Chuck D, who had produced for Public Enemy, explains how this affected the music in an interview for a book about copyright, called Cutting Across Media. In the interview he says, and I quote.
“We were taking thousands of sounds. If you separated the sounds, they wouldn’t have been anything–they were unrecognizable. The sounds were all collaged together to make a sonic wall. Public Enemy was affected because it is too expensive to defend against a claim. So we had to change our whole style.”

Uses outside of fair use are possible with a license. So a license is a legal document that just shows that the copyright owner has given their permission. Since the start of this practice, labels have been giving musicians a bad deal on sampling their favorite artists. Today, the average baseline price is around $10,000. Combine that with the fact that major labels often won’t even respond to a request from an independent artist, and it’s obvious why this route isn’t common amongst indie… average… most musicians.

It’s out of these conditions that a new cottage industry was built by independent artists. And it’s called drum kits, or loop packs, or sample libraries. It doesn’t really matter what they’re called, the idea is basically the same for all those things. Musicians compose new material specifically to be licensed and sampled by other musicians at a rate that’s way more realistic than a $10,000 price tag. Regular musicians from all different styles from all over the world are recording samples specifically to be flipped by producers, all while licensing samples to include in their own releases. And of course this ain’t a perfect solution for musical borrowing and all kinds of collaborations that could exist but… it’s better than what they did to Biz.