Rapper Biz Markie and Warner Bros. Records have agreed to pay songwriter Gilbert O'Sullivan a "substantial" financial payment to resolve a copyright infringement lawsuit by the former British pop star, sources close to the case said Tuesday.
O'Sullivan filed the suit Nov. 13 in New York charging that "Alone Again," a song on Markie's "I Need a Haircut" album, contains an unauthorized 20-second slice of--or "digital sample" of--O'Sullivan's 1972 hit "Alone Again (Naturally)."
Monday's settlement follows a Dec. 18 ruling in New York federal court by Judge Kevin Thomas Duffy stating that Markie and Warners violated U.S. copyright law.
' "Thou shalt not steal' has been an admonition followed since the dawn of civilization," Duffy wrote in the six-page ruling. ""Unfortunately, in the modern world of business this admonition is not always followed."
"Sampling" is the term applied to the widespread practice in rap and dance music circles of lifting portions of a record and using it again in a new record. Sometimes a track on an album will include up to a dozen or more samples. Some of the samples--such as the O'Sullivan tune--are easily identifiable to the average listener, while some are more obscure instrumental riffs or percussion sequences that are more anonymous.
Among the most celebrated instances of rap acts using well-known "samples" are Hammer's "U Can't Touch This," which used a portion of Rick James' "Super Freak," and De La Soul's use of the Turtles' "You Showed Me."
In some cases, the acts pay record companies and artists for the use of the "sample," but in other cases--such as, apparently, the Biz Markie recording--the acts just use the "sample."
Warners ran an advertisement in the Jan. 4 issue of Billboard magazine requesting that retailers stop selling the album and "promptly" return all unsold copies.
The unprecedented ad said, "It is imperative that you immediately adhere to this order or risk serious adverse legal consequences, both civil and criminal in nature."
The company stopped shipping "I Need a Haircut" on Nov. 26, following a temporary restraining order issued by the New York court. Nearly 200,000 albums were reportedly shipped since the album was released Aug. 23.
While terms of the settlement are confidential under the agreement, sources close to the case revealed that Warners also reportedly consented to remove the song from any new pressings of the album. Representatives for Markie and Warners could not be reached for comment.
While refusing to discuss the specifics of the settlement, Jody Pope--an attorney from the New York firm of Carro, Spanbock, Kaster & Cuiffo that represents O'Sullivan--predicted that his client's case will have a dramatic effect on the future of "sampling."
"Sampling is a euphemism that was developed by the music industry to mask what is obviously thievery," Pope said in a phone interview on Tuesday. "This represents the first judicial pronouncement that this practice is indeed theft."
Some rap and hip-hop supporters, including Dan Charnas, director of hip-hop A&R; and promotion at Burbank-based Def American Records, criticized Duffy's ruling. In an interview with The Times last month, he said it's difficult to apply conventional pop copyright laws to rap because there is artistry in taking the electronic samples of existing work and then putting them into new, creative contexts.
"They're going to kill hip-hop music and culture," he warned. "Hip-hop is not traditional music making. I don't think the U.S. legal system or a federal judge (from an older generation) has the cultural capacity to understand this culture and how kids relate to it."
But other pop industry officials said that some sort of copyright protection is needed in the "sampling" world.
Mark Volman, of the Turtles, saluted Duffy's ruling.
"Sampling is just a longer term for theft," he said. "Anybody who can honestly say sampling is some sort of creativity has never done anything creative."