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 together."

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 property.

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