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Gilbert O'Sullivan Beats The Biz In Landmark Sampling Case

A judge rules in favor of the British singer-songwriter Gilbert O'Sullivan in his case against the rapper Biz Markie, who sampled Sullivan's song "Alone Again (Naturally)" without permission. The landmark case establishes that samples must be cleared before they are used.

Sampling has been common for quite some time, with some artists getting permission and others just using the samples and dealing with the fallout after the fact, which early on was the more common approach. An early example of this easier-to-ask-forgiveness-than-permission tactic is "Rapper's Delight" by The Sugarhill Gang, which sampled "Good Times" by Chic in 1979. In 1982, Afrika Bambaataa & The Soulsonic Force interpolated Kraftwerk's "Trans-Europe Express" on their track "Planet Rock," also without clearance. In both cases, settlements were reached. By 1991, most major hip-hop acts cleared their samples, which could usually be done at a relatively low cost, allowing for albums like Paul's Boutique by Beastie Boys, which used about 100 samples. And when they didn't, the matter was typically settled out of court. The Biz Markie case is different because: 1) His record company asked permission, was denied, and used it anyway. 2) O'Sullivan didn't just want money, he wanted Markie's song pulled from the market. Markie's song, released on his 1991 album I Need a Haircut, is called "Alone Again," and finds him playing the role of a sad sack who can't find a friend. It samples about 20 seconds of O'Sullivan's song and interpolates the chorus as Biz laments, "I'm alone again, naturally." Markie did something similar on his 1989 hit "Just A Friend," where he reworked a Freddie Scott R&B song from 1968 called "(You) Got What I Need," but he got a lot more resistance from O'Sullivan. When his record company tried to clear the sample, O'Sullivan rejected it because he felt Markie's comic rendering besmirched the original, which many listeners have used to sink into the throes of depression as a means of musical therapy. Markie is on Cold Chillin' Records, a subsidiary of Warner Bros. Using the sample without permission was a brazen but calculated risk: O'Sullivan was based in England and not likely to hear the song. And to sue Markie, he'd have to appear in New York court to do it. That's exactly what he did. The case is decided quickly and decisively - O'Sullivan says Biz Markie didn't even show up. The judge delivers a harsh repudiation of Warner Bros., opening his ruling by quoting the book of Exodus: "Thou shalt not steal." On December 30, the two sides agree to a settlement that is not disclosed, but reported as "substantial." In addition to the payout, Warner Bros. recalls the album, which has been out since August 23. The song is removed from additional pressings of the album. The case sends record company lawyers scrambling to secure the rights to all those uncleared samples, and to make sure every sample is cleared henceforth. Even tiny samples that nobody bothered clearing before the case are now an issue. Case in point: "Tennessee" by Arrested Development, which uses one word ("Tennessee") from the Prince song "Alphabet Street." Prince could name his price, which turned out to be $100,000. Here's more on the history of plagiarism in songs.

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• Legal Issues