Adventures in Information Capitalism:
Gilbert O'Sullivan Meets Biz Markie
In a way, this is a tale of two weirdos.
Raymond Edward O'Sullivan was born too late. Like many 19-year-old U.K.
art-schoolers in 1967, he wanted to be a pop star.
For him, however, pop was more music hall and Tin Pan Alley than
the Beatles and the Brill Building. Lotsa luck, twerp. But after
several flop singles he won the hard heart of Tom Jones/Engelbert
Humperdinck svengali Gordon Mills, who rechristened his charge
Gilbert and dressed him up in knickers, a newsboy cap, and a white
sweater with a big G on it. And in 1972 this ridiculous character
came up with "Alone Again (Naturally)," a pop classic that began
with a reedy-voiced swain left at the church on his would-be
wedding day and ended with the swain's mother mourning his father
and then dying herself, leaving the swain you-know-what
(naturally). The melody was unforgettable, the arrangement tartly
schmaltzy, and Gilbert O'Sullivan massive for well over a minute.
Though he scored several follow-ups, notably a love song to his
niece, his U.S. hits petered out within two years and his U.K.
career wound down too soon--so soon that he sued Mills, eventually
winning control of his catalogue and two million pounds in back royalties.
O'Sullivan, who still writes a song a day no matter what, now
records for U.K. Chrysalis. He has an eccentric, tuneful,
sentimental retrospective out on Rhino.
Marcel Hall was born in Harlem around when O'Sullivan started
to scuffle. A clown whose press kit boasts of the Ex-Lax cake he
baked his Strong Island vice-principal, he loved music as much as
he loved nonsense, dubbing himself Biz Markie and DJing at the Roxy
and the Fun House before hooking up with Marley Marl in 1985.
Though he went national with the told-you-so "Vapors" in 1988 and
pop with the forlorn "Just a Friend" in 1990, his hallmark is
"Pickin' Boogers," a grossout written by his homeboy Big Daddy
Kane. Biz is a beloved but anomalous figure in rap. Bumbling,
spaced-out, not hard, not sexy, not cool, his albums have been
patchy with great moments. But I Need a Haircut, released August 26
by the Warner Bros. subsidiary Cold Chillin', is (or was) something
more: star-crossed. Even before MTV, BET, and Video Jukebox--discomfited
by such imagery as "When I am constipated or have
diarrhea/I always come up with a funky fresh idea"--rejected the
porcelain-and-tissue goof designed to promote the glorious "T.S.R.
(Toilet Stool Rap)," Biz was in trouble. When he'd scrawled the
lines, "A lot of my hits are written on the john/I hope my
legendary style of rap lives on," he didn't know he'd soon have
Gilbert O'Sullivan out to stop him.
In late July, a lawyer representing Biz wrote Terry
O'Sullivan, an automotive design executive in Detroit who handles
his brother's affairs in the U.S., seeking to clear Biz's use of a
sample from "Alone Again (Naturally)." Although Terry O'Sullivan
was neither prompt nor encouraging, Cold Chillin' released I Need a
Haircut on the assumption he was playing hard to get. "My brother
was absolutely furious," Terry recalls. No stranger to litigation,
Gilbert sued. In late November the judge, a known hardass named
Kevin Thomas Duffy, issued a temporary injunction barring further
sales of the album, which had barely creased Billboard's pop chart
anyway. And on December 16 Duffy not only made the order permanent,
effectively putting the album out of circulation forever, but
referred the case to the U.S. Attorney for criminal prosecution.
His opinion began by quoting a duly cited text in the public
domain, Exodus 20:15: "Thou shalt not steal."
While there's no need to go along with O'Sullivan's counsel
Jody Pope, who claims to have established that sampling "is a
euphemism in the music industry for what anyone else would call
pickpocketing," Duffy's decision is more momentous than rap
attorneys like to admit--no way is it a healthy precedent that the
first such case to reach final judgment cries theft. Sampling
advocate Ken Anderson, who holds that many samples qualify as fair
use, reads the opinion to say that Biz made the mistake of
acknowledging that his sample required clearance, thus removing the
crucial question of whether it in fact constituted an infringement.
Anderson, whose practice is to state that he's seeking a clearance
solely to avoid the cost and aggravation of any possible later
claim, says he's "afraid the case may encourage publishers to make
claims which don't have a sound basis in copyright law, because
they'll believe that any form of sampling is now per se a copyright
infringmement when there was no decision at all as to whether there
was such an infringement." As Biz's new counsel Stu Levy puts it:
"The case everyone is waiting for is when do you have to ask for
permission. When you represent a publisher you say, `You can't just
take it.' But when you represent an artist you say, `By the time I
get through tracking it and dubbing it and changing it . . .' That
issue has never been addressed. Everybody's dying to know, but
everybody's afraid of what the answer will be. So they settle."
Because they're afraid, rap bizzers have long since
rationalized sampling. Back in the day, artists appropriated
recorded beats, licks, and hooks like they had a right. But a few
claims ended that. For Jive legal chief Paul Katz, the turning
point came in 1986 with a "very small," "totally meaningless" D.J.
Jazzy Jeff sample that he's forbidden to identify. Now an in-house
attorney analyzes samples for their importance to the song while
the artist is still recording, then obtains permissions from
whoever controls publishing and mechanical rights (usually two
different parties). Many labels routinely assign such work to
specialists like husband-and-wife team Larry Stanley and Hope Carr
in New York (De La Soul, P.M. Dawn) or Madeleine Smith in L.A.
(N.W.A, Latin Alliance)--because they don't cost as much as outside
attorneys (Smith charges $40 an hour, Carr $50, attorney Stanley
only $80, with fees sometimes divided when several artists are
cleared at once), because they've developed relationships with
major copyright holders (the lawyer who cleared I Need a Haircut
had never done such work before), and because they have more to
negotiate with (give me this one and we'll use something of yours
next time). Needless to say, settlements vary enormously. Rappers
are generous with their own music, and the unknowns Stanley calls
"baby groups" often pay comparatively low rates. But speaking very
roughly, publishers usually get from 15 to 50 per cent of the song
while master rights cost a few thousand dollars against a royalty
of one or two cents a record.
As a longtime sampling fan, I felt that most of the bizzers who talked
Biz's biz with me were good guys--comrades who cared
about the artists and the art. But it's clear that even before the
Duffy decision, the quid pro quo surrounding sampling had a
chilling effect on rap's fundamental musical technique. Though one
suspects--more lawyers than rappers or bizzers deny it--that most
rap drum tracks still build off other people's percussion, the
recontextualizing juxtaposition of identifiable samples, in theory
one of tape technology's most exciting artistic uses, failed to
develop. Instead, samples surface as simple musical beds ("Super
Freak" becomes "U Can't Touch This") or hooks ("ABC" becomes
"O.P.P."). And though Hammer may swear it was pride that spurred
him to create the music on his new album instead of appropriating
it, Luther Campbell sings a different tune: "A lot of people are
getting away from samples now; it's too expensive." Because some
artists--Prince, Zapp, War--charge a lot for a little, and others--Led
Zeppelin, Steve Miller, the Beatles--just say no, clearance
specialists aren't shy about advising artists to seek musical
alternatives. Hope Carr reports that creative ferment is often the
happy result. But when P.M. Dawn hook "The Beautiful" with a
woodsprite trilling "How does it feel to be one of the beautiful?"
instead of a snatch of the Beatles' "Baby You're a Rich Man," the
meaning of the song, not to mention "the quest to become colorless"
that is its theme, changes radically.
And at least the Beatles are a known factor--what worries
the specialists is musical loners who've never encountered sampling,
much less decided they might benefit from the income and
recognition it affords. Maybe a loose cannon whose catalogue is his
life, like Gilbert O'Sullivan, who initially assumed that Biz
Markie was an unknown amateur, and who testified quite credibly
that "Alone Again (Naturally)" remained a lucrative copyright whose
respectable reputation he was at pains to protect. Terry
O'Sullivan, who regularly (though not automatically) licenses his
brother's songs as background in commercials and such, was struck
by a Billboard story referring to Biz as a "humorous" rapper. A
"serious" artist like Andy Williams was one thing, Terry told me,
but "`Alone Again (Naturally)' and the word humorous don't belong
Even though such a position clearly means to quash parody
("You can't paint a mustache on my Mona Lisa," Stanley calls it),
it's hard not to feel considerable sympathy. What's tragic is that
Biz's "Alone Again" isn't a parody--it's a sad homage from one
musical loner to another. Biz appropriated not the song's melody--and
to be perfectly clear, that means not the part you and everyone
else remember--but its dissonant piano intro, which in the original
is instantly submerged in the strings to which it lends such crucial
savor. It's the perfect musical bed for a sentimental
oddball, as Biz most certainly knew. Of course, that's assuming
he's an artist. If you agree with Judge Duffy--who reportedly asked
for O'Sullivan's autograph and is so unfamiliar with black music he
asked one witness, "What is r&b?"--that Biz's "only aim was to sell
thousands upon thousands of records," then all the rapper was doing
was "stealing," and subsequently fencing, Gilbert O'Sullivan's
Whether the alacrity with which outsiders charge criminality has
anything to do with rap's image in the hegemonic mind is of
course a matter of opinion. (Judges are paid to have opinions, but
then again, so am I, and I know what mine is.) Yet note that though
"borrowed" riffs are de rigueur in rock and roll--how many (mostly
white) guitarists have inserted a piece of "Johnny B. Goode" or
"Dust My Broom" (or "I Wanna Be Your Dog") into their own songs?--rappers
are expected to clear such usages, according to Madeleine
Smith, even when the notes are reproduced by a living musician
rather than taken off a record. Everybody agrees that Biz and/or
Cold Chillin' messed up bigtime by not obtaining clearance up
front. But that's a statement about power, not ethics. That the
rules are generally accepted doesn't mean they're universally
respected, much less that they deserve to be.
Figuring I'd been talking to too many lawyers, I secured a few
minutes on the phone with an artist, the ever-forthcoming KRS-One.
KRS-One clears his samples. As a matter of both business and
morality, he told me, "If you know you took it you gotta pay for
it." But he didn't think sampling was all that new--only the
technology. "In the early rock and roll era"--which from his
perspective encompasses the '50s and the Stones--"they didn't have
computers, otherwise they would have done the same thing. So
instead they sampled the human being itself." Keith Richards, meet
Chuck Berry. Maybe you think he's oversimplifying, as I do, but you
know what he's talking about, don't you? He's oversimplifying when
he says "America is based on stealing," too. But he ain't just
jiving. Here's hoping that somewhere down the line Ken Anderson
makes the fair use defense stick. And here's hoping that eventually
the "owners" of the Beatles' music--one of whom is, of all people,
Michael Jackson, who outbid Paul McCartney some years back--agrees
to make P.M. Dawn's vision of harmony just a tiny bit realer.
Village Voice, Jan. 21, 1992