The hip-hop music that I fell in love with back in the mid-to-late 80's had a certain sound that you just don't hear in today's rap music. At the time everybody was sampling James Brown, and groups like the Beastie Boys went well beyond that, sampling even the Beatles and Led Zeppelin for their 1989 opus Paul's Boutique.
The ability to combine samples from anywhere and everywhere led to some of the most interesting and creative hip-hop and electronic music in the history of the recording industry. There was one little problem, though: none of the sampled artists were getting paid, despite the fact that other artists were making money off of music containing snippets of their songs.
That's when the lawyers stepped in. And you know that's always a bad sign.
Once dismissed as a fad, hip-hop was generally considered a cultural backwater for most of the 80's (despite the successes of Run-DMC, LL Cool J, Whodini, and other artists). It took the meteoric rise and spectacular mainstream success of MC Hammer and Vanilla Ice in 1990 to make the rest of the world realize that rap music could make big money. As it became more popular, the recording industry became increasingly aware of the fact that many rappers were laying rhymes over other people's music and selling it as their own. It was a legal powderkeg waiting to explode, and in 1991 it finally did.
Biz Markie was a member of Marley Marl's Juice Crew, and a well-known player on the New York hip-hop scene. While best known these days for "Just A Friend", a classic tale of lost hip-hop love, the song that got him into trouble was a hard-luck story from his album I Need A Haircut entitled Alone Again. The song itself was nothing out of the ordinary, aside from its sampling of the Gilbert O'Sullivan song Alone Again (Naturally). O'Sullivan caught wind of the song being used without his permission, and Grand Upright Music, Ltd. - to whom O'Sullivan had signed over the rights to the recording - immediately filed a copyright infringement suit.
Biz Markie really never had a chance in court. The ensuing trial revealed that Warner Bros. Records had actually tried to get permission to use the sample but were denied, making its use in Markie's song even more damning from a legal perspective. Markie's lawyers also defended the sampling by stating that the use of unauthorized samples was rampant in hip-hop, a veritable "everybody does it so it must be okay" defense that no judge was going to buy. Grand Upright won the suit, and future copies of I Need A Haircut had the song omitted.
The outcome of the lawsuit drew a clear legal line in the sand: all hip-hop samples must be cleared, and the original artists had every right to sue rappers and their record companies if their work was used without permission. This shook hip-hop production to its very foundations. Sample-heavy production, which at the time was being pushed to its outer limits by production crews like The Bomb Squad and The Dust Brothers, came to a halt; most records were limited to two or three samples at most to avoid excessive clearance costs. The more clever producers like Dr. Dre began using "interpolation" - getting studio musicians to replay original music - in order to pay only the songwriters (as opposed to also having to pay the original performer and their record label). Rap music would never be the same.
However, the story isn't over yet. In the midst of coming to grips with the recent death of founding group member Adam "MCA" Yauch, the Beastie Boys have been hit with a lawsuit filed by recording label Tuf America regarding the use of samples of the group Trouble Funk. The label contends that samples of the Trouble Funk song Drop the Bomb were used without permission on Beastie songs The New Style and Hold It Now, Hit It from Licensed to Ill, and Car Thief and Shadrach from Paul's Boutique. They also contend that the group continues to profit off of this illegal sampling by re-issuing the albums, spurring new record sales.
The problem is that both of these accusations are 100% true. At the time that these seminal albums were recorded, sampling was a legal grey area. Beyond general copyright law, there was no legal precedence to govern sampling prior to 1990, so it has long been assumed that these sample-laden albums were "grandfathered" in to the newly-litigious era of sampling and would remain unassailable in court.
This lawsuit has the potential to change all of that. If Tuf America wins the suit and the Beastie Boys are forced to pay up, there's nothing stopping The Beatles, Led Zeppelin, and the dozens of other artists sampled on their albums from coming after the group to get their cut. And in a broader sense, there's nothing stopping other sampled artists from going after 80's rap stars either. It's a scary proposition, and one that could retroactively take classic hip-hop records off the shelf, denying future fans the chance to learn about the history of rap and its influential production practices.
Some sort of accord needs to be reached in order to end these sampling wars. Artists that get sampled need to get paid for the use of their work, but they shouldn't be able to outright refuse the sampling of their music or be able to price it so high as to effectively prohibit its use altogether. While they most certainly own their music, they shouldn't be able to stifle the creativity of other artists just because they disagree with the concept of sampling. Their music also shouldn't be prevented from being shared with new generations for fear of legal repercussions.
A standardized industry-wide sampling pay scale based on the popularity of an artist's music would work wonders to remove this contentious atmosphere. Today's open sampling market creates nothing but a mish-mash of legal wrangling, with some artists being friendly towards sampling (Parliament) and some artists absolutely despising it (The Rolling Stones). Meanwhile, music fans are denied the great sample-based music that would undoubtedly be made if a more sensible payment system was in place, one that made sampling more universally accessible and affordable. In the end, the only ones that really benefit from this mess are the lawyers.
And you know that's always a bad sign.