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Hastings Law Journal

Abstract

In Grand Upright Music Ltd. v. Warner Bros. Records, Inc., plaintiff was the copyright owner of "Alone Again (Naturally)"- a song written and recorded by Gilbert O'Sullivan. "Alone Again (Naturally)" was sampled in a subsequent song by rap artist Biz Markie. Although Biz requested permission to use the sample, his album was released before permission was granted. Plaintiff filed suit to enjoin the use of the sample by Biz. The United States District Court granted the injunction, referring Biz Markie and the other defendants to the United States Attorney for possible criminal prosecution. In its decision, the court equated sampling with theft; this decision has had the effect of rendering all sampling legally suspect.

This Note criticizes the court for failing to realize the significance of the issues at stake, and for creating a harsh rule in an opinion devoid of reasoning or precedent. The author argues that the court should have enunciated standards and guidelines that the performing arts community could rely on.

To remedy the confusion, the author proposes a legislative solution patterned after 17 U.S.C. § 107 (the affirmative defense of fair use). This proposal would acknowledge sampling as an art form while providing reasonable protection to sampled artists and copyright holders.

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