"All Samples Cleared!" Remembering Biz Markie's Contributions To Copyright Law

• Published date: 18 August 2021
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Copyright, Music and the Arts
• Law Firm: Cowan Liebowitz & Latman PC
• Author: Ms Dasha Chestukhin and Joelle A. Milov

Biz Markie (born Marcel Theo Hall), popularly known as hip-hop's clown prince, passed away on July 16, 2021 at the age of 57. Biz's innovative beats and lovably goofy lyrics left their mark on the music industry in more ways than one.

A 1991 case involving Biz's song "Alone Again" held that sampling (use of a portion of a preexisting sound recording) without authorization constituted copyright infringement, thereafter requiring musical artists to clear (obtain licenses for) samples rather than freely incorporating them into new tracks, as was previously common practice.

In 1991, following up on the success of his platinum single "Just A Friend," Biz released his studio album "I Need a Haircut" with the song "Alone Again," which borrowed several bars and the three titular words from Raymond "Gilbert" O'Sullivan's 1972 hit "Alone Again (Naturally)." O'Sullivan sued Biz and his record label Warner Bros. (among others) for copyright infringement based on the unauthorized use of O'Sullivan's sound recording and composition.

The resulting case, Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991), was decided in O'Sullivan's favor, with Judge Kevin Duffy beginning his opinion with the biblical admonition "Thou shalt not steal" and noting that defendants had violated "not only the Seventh Commandment, but also the copyright laws of this country."

Judge Duffy noted that all the defendants knew that they were supposed to obtain a license (also called a clearance) from the copyright holder before incorporating part of a copyrighted recording into a new track. Indeed, prior to the album's release, Biz's team had asked for, but evidently failed to secure, O'Sullivan's consent to use his song. As such, the defendants were knowing infringers.

The fact that sampling without prior clearance was rampant in the rap industry at the time held little water with Judge Duffy, who preliminarily enjoined the defendants from distributing the infringing song. Judge Duffy even referred the matter to a U.S. attorney for criminal prosecution (no charges were ever filed). Despite the ruling, Biz never lost his sense of humor: his next album was cheekily titled "All Samples Cleared!"

Judge Duffy's righteous rebuke profoundly changed the growing hip-hop industry because recording artists now needed to clear any sample that they used in a new song. It became cost-prohibitive for artists to incorporate more than one or two samples from other sound...