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.