Legal issues surrounding sampling typically occur when the party with the rights to the song sampled sues the party that sampled the song. Cases from the past regarding copyright laws in specific to music and sampling have shaped the way sampling is legally handled today.
One of the most far-reaching lawsuits involving music sampling occurred in 1991, when rapper Biz Markie faced legal trouble for the use of sampling in his song “Alone Again”. The song was based on a sample of the Gilbert O’Sullivan song “Alone Again (Naturally)”, and was recorded for his album I Need a Haircut. As the album was released shortly after a similar lawsuit between De La Soul and the Turtles, Biz Markie and Warner Bros. Records initially tried to get permission from O’Sullivan, but when he didn’t respond, they released the song anyway. In response, the copyright holders of O’Sullivan’s song, Grand Upright Music, sued Biz Markie and Warner Bros. for copyright infringement.
The lawsuit eventually ended up being decided by New York District Court judge Kevin Thomas Duffy in a landmark decision that changed the way sampling in the music business worked. His memorandum, which famously began with the Biblical commandment “Thou shalt not steal”, ruthlessly denounced Markie and Warner Bros for having a “callous disregard for the law and the rights of others,” ordered Markie to pay $250,000 in damages to O’Sullivan, barred Warner Bros. from selling future copies of the song, and even referred the case to the United States attorney for possible criminal prosecution (which luckily didn’t occur, as Markie ultimately was never charged). However his decision has been criticized by many experts in copyright law. For example, when Markie argued that sampling was commonly used in hip hop music as a form of artistic expression, Duffy shot down his argument, saying that “the defendants… would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused.” In the article “Race and the Legal Treatment of Digital Sampling”, Professor Emerita of Law at the University of Dayton Vernellia R. Randall argues that due to Duffy’s argument that sampling is inherently a form of theft, he “legitimized a hierarchy of cultural production in which digital sampling (within hip-hop specifically) is on the bottom,” and reasoned that Markie sampled the song not for aesthetic reasons, but, in Duffy’s words, “to sell thousands upon thousands of records”.
The ripple effects of the Grand Upright lawsuit became apparent almost instantly after it was decided. Beforehand, many acts tended to use various samples without abandon, but after the decision, many hip hop acts changed their sound out of fear of legal issues. Some high profile artists (especially those in the subgenre of G-Funk) began using a technique called interpolation, which involves replaying parts of songs in order to have to pay only the songwriters (much like how cover versions of songs work). Others, especially the more obscure artists without much major label backing, merely decided to alter recognizable samples from their songs, or began to use obscure samples in order to avoid detection.
In March of 2013, R&B singer Robin Thicke, along with esteemed producer Pharrell Williams and rapper T.I., released the hit single “Blurred Lines”. The song spent 12 weeks at the top of the Billboard Hot 100, and ended up reaching the number 2 spot of the year end charts. However, shortly afterwards, the estate of Marvin Gaye and the publishing company Bridgeport Music accused them of ripping off the songs “Got to Give it Up” by Marvin Gaye and “Sexy Ways” by Funkadelic. They argued that because “Blurred Lines” and “Got to Give it Up” had the same “feel” and “groove”, it was tantamount to copyright infringement. As a result, Williams, Thicke, and T.I. filed a complaint for declaratory relief against Gaye’s estate and Bridgeport, arguing that they were merely trying to “evoke an era” and that they were trying to claim ownership of an entire genre. In response, Gaye’s estate counter-sued, saying that “”many of the main vocal and instrumental themes of ‘Blurred Lines’ are rooted in ‘Got to Give It Up’” and that “the substantial similarities are the result of many of the same deliberate creative choices made by their respective composers.”
From the “Blurred Lines” Music Video
Ultimately, in March of 2015, the jury ruled in favor of Gaye’s estate, saying that while Williams, Thicke, and T.I didn’t directly copy “Got to Give It Up”, but their song had a similar enough “feel” to the Marvin Gaye song to warrant copyright infringement. They ultimately had to pay Gaye’s estate a whopping $7.4 million (later lowered to $5.3 million) in damages, the largest amount ever granted in a musical copyright case. This decision was criticized by many people. Many worried that it would lead to a new wave of lawsuits, as now people could be sued for having a similar “feel” to another song. Others said it provided an “intellectual justification for fencing off more of our shared heritage of sounds, grooves, vibes, tunes, and feels from the people who need it most.” And looking at the barrage of copyright infringement lawsuits towards artists such as Katy Perry, Ed Sheeran, and even Led Zeppelin, it seems that many of those fears were warranted. It also raises an important question: where should the line be drawn between taking influence from an artist and blatant copyright infringement?