How the Grand Upright Case Changed Hip Hop Music Forever

Public Enemy's It Takes a Nation of Millions to Hold Us Back

Public Enemy’s It Takes a Nation of Millions to Hold Us Back, one of the great albums from the “golden age” of sampling (Wikipedia)

Most of the posts in this series deal with current events involving intellectual property.  But a few times this fall, I’ll return to some key moments in intellectual property history, when IP-related events changed culture or industry in big ways – intellectual property theory’s “greatest hits”, if you will.  In this installment, we will revisit an obscure copyright infringement case, Grand Upright Music, Ltd. v. Warner Bros. Records, Inc., that had a big effect on hip hop music, and still raises serious questions about IP and culture.  So let us go back, to a distant and alien time…

…specifically, to August 1991, a momentous month in world history.  A computer geek named Tim Berners-Lee announced the creation of something he called “The World Wide Web”; on the 19th, a coup toppled the Soviet Union; the Super Nintendo video game system was released in the United States; and rapper Biz Markie released his 3rd studio album, I Need a Haircut.  Biz Markie’s previous album, The Biz Never Sleeps, had been a big success, thanks to the track “Just a Friend”.  I Need a Haircut wasn’t a big hit,  but the album was destined for infamy, thanks to its 12th track, “Alone Again”, which became the focus of a copyright lawsuit.

“Alone Again” was built around two samples, one of which came from the song “Alone Again, Naturally” by Irish singer-songwriter Gilbert O’Sullivan.  Grand Upright Music, which owned the rights to the song, sued Warner Bros. (Biz Markie’s label) for copyright violation.   The case was argued in front of Judge Kevin Duffy of the Southern District of New York.  In a slightly sanctimonious decision (Duffy began his opinion with the sentence: “Thou shalt not steal”), Duffy found in favor of Grand Upright Music, and even referred the case to the US Attorney’s office for possibly criminal prosecution against Biz Markie and his producers (no charges were filed).

The Grand Upright case officially made unauthorized sampling of recorded music copyright violation, and had an immediate and profound effect on hip hop music.  Prior to Grand Upright, tracks like Public Enemy’s “Rebel Without a Pause” could be built out of dozens of samples.  But now the golden age of sampling was over; after Grand Upright, instead of sampling at will, producers had to clear all the samples they used with copyright holders.  The greatest innovator in the post-Grand Upright era was Sean Combs (better known as Puff Daddy), founder of Bad Boy Records and a prolific producer.  Combs figured that if he took recognizable samples from previous hits, and used them as hooks in his artists’ tracks, he could make catchy songs even if he could only use one or two samples.  The difference between one of Combs’ productions – say, the classic “Juicy” by Notorious B.I.G. – and any of the tracks from the golden age of sampling is readily apparent.

The question that is almost always asked about sampling is: is it theft?  This, however, misses the point raised by Grand Upright.  One of the most striking criticisms of intellectual property, made by media scholars such as Siva Vaidyanathan, is that it is a tool for cultural oppression; a way, in short, for powerful media companies to force relatively less powerful communities of artists to play by rules that are highly favorable to those companies.  DJs in New York City had been lifting elements of recorded music and incorporating these samples into new tracks since the 1970s.  But it was only when hip hop music became popular – and hip hop artists began making serious money – in the late 80s that any legal issues about sampling were raised.   Copyright was effectively deployed by media companies to extract rents for use of recorded music by a community of predominantly African-American artists, whose growing popularity posed a threat to their business interests.  This looks like pretty convincing evidence in favor of the charge that IP is a tool of cultural oppression.

The Grand Upright case thus continues to raise serious questions about intellectual property and culture.  Namely, it forces us to confront a serious question: does copyright protect artists’ property rights in their own creations, or does it allow media companies to exploit artists and control how their creations are used and consumed?  The subsequent history of Post Grand Upright hip hop music seems to support the latter option.  That was certainly the effect on Biz Markie, at least; the chastened MC titled his next album All Samples Cleared!

‘Owning Ideas’ is an occasional series about intellectual property and its effect on media, health care, and culture

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