1. Thou Shalt Not Steal--Grand Upright Ltd. v. Warner Bros. Records, Inc.
One of the few cases to directly address digital sampling, Grand Upright Music Ltd. v. Warner Bros. Records Inc. set what is likely the most important, and perhaps the most troubling, precedent for such cases. In 1991, artist Biz Markie recorded the track Alone Again for his album I Need a Haircut, which included a ten-second digital sample of the first eight bars of Gilbert O'Sullivan's Alone Again (Naturally). While Markie attempted to obtain permission to use the sample, Warner Brothers Records released the album before O'Sullivan responded. Following O'Sullivan's subsequent efforts to have the album removed from the market, Grand Upright Music (the alleged copyright owner of Alone Again (Naturally)) brought a copyright infringement action against Markie. O'Sullivan's attorney framed the issue in black and white terms: You can't use somebody else's property without their consent. . . . [Digital sampling] is a euphemism . . . for what anybody else would call pickpocketing.
Judge Kevin Duffy of the Southern District of New York agreed. Quoting the only authority cited in his decision, Duffy admonished Markie with perhaps the four most notorious words within the digital sampling community: Thou shalt not steal. Turning neither to de minimis nor fair use doctrine, the court cited Markie's callous disregard for the law and infringement upon O'Sullivan's rights in an effort to sell thousands upon thousands of records. The court granted injunctive relief for Grand Upright Music and referred the case to the United States Attorney for possible criminal prosecution.
Grand Upright provided little guidance for future sampling cases, and created an environment of uncertainty that has made it too risky for artists to contest claims of copyright infringement. Furthermore, in relying on assumptions that equate digital sampling with outright theft--whether of sound, personality, or money --Grand Upright explicitly rejected Markie's justification that digital sampling is widely used in the production of hip-hop music. In response to Markie's invocation of what amounts to a cultural defense --that borrowing is socially acceptable within the hip-hop community--the court in effect held that attempts to excuse lawlessness by noting a common disregard for the law are always destined for abject failure. The court cryptically stated that the argument was totally specious. The mere statement . . . is its own refutation.
In rejecting Markie's culture-based argument, the court in Grand Upright effectively legitimized a hierarchy of cultural production in which digital sampling (within hip-hop specifically) is on the bottom. The court reasoned that Markie, in sampling O'Sullivan's work, had one objective in mind: economic gain. Instead of sampling Alone Again (Naturally) for aesthetic reasons, Markie's only aim was to sell thousands upon thousands of records. Such a view does not square with competing, well-reasoned analyses of borrowing and transformative imitation.
Grand Upright has been roundly criticized, and justifiably so. Unfortunately, the case's theft-based analysis equating digital sampling to stealing of property has taken hold in other courts.