ABSTRACT

By the early 1990s, hip-hop had become a major commercial force, and its producers were finally receiving recognition for their intricate use of samples. Given rap’s increasing visibility, however, it was inevitable that hip-hop artists would eventually find the legality of their sampling practices questioned in a court of law. In December 1991, Judge Kevin Thomas Duffy ruled that rapper Biz Markie’s song “Alone Again” was in copyright violation of the song it had sampled, Gilbert O’Sullivan’s 1972 hit “Alone Again (Naturally).” Duffy’s decision was forceful, but also vague; he did not state what amount of sampling would be permissible. As such, the ruling created a culture of fear within the music industry. It seemed implicit that any and all samples, regardless of their length, would require clearance. Mark Kemp’s article for Option magazine captures in illuminating detail the debates that emerged in the wake of the Biz Markie case. Years later, many of the concerns that Kemp raises have come to be realized. On the one hand, since the early ’90s most major hip-hop artists have taken a financially efficient approach to sampling, severely limiting their borrowing to only one or two prominently placed, and repeated, samples per song. On the other hand, many rap producers have worked around copyright restrictions by using obscure sources, or by deliberately altering samples to the point where the original is no longer recognizable. Whether or not the “Biz Markie case ‘stole the soul’ from rap music,” as copyright expert and Fair Use advocate Siva Vaidhyanathan has maintained, is debatable. But its impact is impossible to ignore.1