“Thou Shalt Not Steal”: Sampling in the Music Industry

Introduction: What Is Sampling

Have you ever been listening to new music and felt there was something slightly familiar about it? It may have merely been a hook or a short chord progression—nothing more than a few seconds of similarity between the new song and something you had heard before. Well, what you may have been hearing is what people in the music industry consider “sampling.” Found in almost every genre of music, but most commonly in Hip-Hop and R&B, sampling is referred to as “the extraction of fragments from existing musical works, which are used in the composition of creative, new pieces.”[1] Considering its definition, it is not surprising to learn that sampling has been the instigator of a number of copyright and “fair use” litigation cases.

Sampling is simply copying from any sort of sound recording but, in the most famous legal cases, those sound recordings are taken from published songs. Sampling can occur with lyrics, harmony, melody, or spoken words, but also with the composition in which those things are combined or produced.[2] When one samples, they are generally infringing on two types of copyright: the original artist’s composition of a sound recording and the production surrounding that sound recording as well.[3] Therefore, to legally sample a snippet of a song, one must be granted permission from both the songwriter/publisher of the song and the record label that represents them.

Legal Precedent

As referenced above, there are select genres that sample more than others. In fact, sampling has been a core aspect of Hip-Hop since the elements of the musical genre came together in the early 1970s, with over 56% of samples in modern music coming from Hip-Hop and R&B.[4] Because of this phenomenon, it was commonplace for Hip-Hop artists to sample creators from all genres as a sign of respect and praise for the original artists’ work and, as a consequence, it became the norm for artists to not ask for permission when sampling other creators’ songs.

Eventually, some artists became upset about this practice, and given their right to exclude others from infringing on the composition of their work and their sound recording, many lawsuits arose regarding sampling.

The most famous sampling case was that of Grand Upright Music v. Warner Bros. Records, Inc. (1991).[5] In 1972, Irish singer-songwriter Gilbert O’Sullivan released “Alone, Again (Naturally),” a touching song that tells the story of a suicidal man being left at the altar and grappling with the death of his parents.[6] The song sold over two million copies, was nominated for three Grammy Awards, and was O’Sullivan’s only American Number One hit.[7] Nearly two decades later, New York rapper Biz Markie sampled the underlying piano chords from O’Sullivan’s hit. The chords were a “1,” “3,” “2,” and “5,” composition, which is not an uncommon chord progression in pop music. The issue at hand stemmed from Biz Markie sampling the piano playing from O’Sullivan’s song specifically, without reaching out to O’Sullivan or his record label.[8] Consequently, O’Sullivan’s label sued Warner Bros. Records, the label representing Biz Markie, for copyright infringement. The judge began his sentence with the biblical quote “thou shalt not steal,” then proceeded to grant an injunction to the plaintiffs to prevent further “improper and unlicensed use of the composition ‘Alone Again (Naturally).’”[9] The quote was representative of how American courts would settle sampling disputes from then on, impacting the modus operandi of the Hip-Hop genre for decades to come.

Impact: Legal And Musical Implications

The aforementioned court case had rippling effects on the Hip-Hop industry. The ruling now requires producers to seek the original artists’ clearance before including a sample into a new composition. Sampling clearance fees were implemented in record labels and the number of rap and R&B songs that pulled from other musical works severely waned. Pitchfork, one of the most highly respected online music publications, wrote how “Overnight it became forbiddingly difficult and expensive to incorporate even a handful of samples into a new beat… Producers scaled back their creations, often augmenting one choice groove with a bevy of instrumental embellishments.”[10]

Biz Markie’s song sampling “Alone, Again (Naturally)” is not available on any streaming services. And to make light of the situation, his next album after the lawsuit was fittingly titled “All Samples Cleared!”