(Legal) Career Killers: “Alone Again” by Biz Markie

by Unfrozen Caveman Law Writer

Welcome to (Legal) Career Killers — a series that looks at how the law, lawyers or lawsuits killed a band’s or artist’s careers. In other words: They fought the law and the law won.

I wrote an ABA Journal cover story in 2019 looking at songs that changed the law. The issue of sampling has become an important one when it comes to copyright law. A major reason why was because of two 1991 cases. I spotlighted the first: a lawsuit filed by members of 60s era band The Turtles against hip hop group De La Soul. I decided to take a look at the second one, which involves the recently deceased rapper Biz Markie.

When the Diabolical Biz Markie died in July 2021, many publications made sure to emphasize that he was more than just a one hit wonder. Widely known for his big personality and sense of humor, the “Clown Prince of Hip Hop” (he once recorded a song about picking his nose called “Pickin’ Boogers” – either that or “Weird Al” Yankovic’s “Gotta Boogie,” is the best song ever written about nose doo-doo) was a highly influential rapper who was beloved in hip hop circles and by his fans.

But the fact remains that most people only knew him by his big hit, 1989’s “Just a Friend.” A major reason why he never had another was because of a lawsuit that helped set a precedent in the then-grey area of sampling.

Sampling, which involves the use of portions of previously recorded songs in new compositions, has a long, rich history in hip hop. While sampling has been, and still is used in many other genres, including pop, rock, electronic, ambient and dance music, it was part of the foundation for hip hop. For one thing, it was arguably necessary since most rappers did not play instruments or have backing bands. Additionally, as some commentators have argued, sampling in the hip hop world was seen as a political act — a way for a historically oppressed minority to co-opt popular culture and repurpose it for their own consumption and purposes.

Plus, sampling popular music allowed artists to take advantage of audiences already knowing the original melodies, riffs and passages, possibly making them more receptive to the new recording — think “Ice Ice Baby” or “U Can’t Touch This.” Or “Wild Thing,” by Tone Lōc, who sampled the famous drum roll and some guitar parts from Van Halen’s 1978 classic “Jamie’s Cryin.’” (Lōc got sued by Van Halen, and eventually settled out of court, but the hard feelings lasted. According to the rapper, Eddie Van Halen approached him later on and accused him of stealing money.)

“That’s a part of rap – sampling,” Tone Lōc said in a 1989 AP story about sampling. “You bring back old songs that you might have forgot about or never heard before. When you hear the little riff, that little tune in your head, it starts coming back to you, and it sounds good.”

And, of course, putting together many different samples can be a transformative artistic process that can result in something completely new and exciting. The Beastie Boys, for example, did just that on their 1989 sophomore album, Paul’s Boutique, to great acclaim.

But the law was starting to catch up. The Beasties had paid licensing fees for most of their samples, but many hip hop artists didn’t bother to clear theirs. In the late 80s and early 90s, many rappers came under scrutiny for allegations of unauthorized sampling — most notably De La Soul, who got sued by The Turtles for allegedly using a portion of the latter’s 1968 song “You Showed Me,” and Biz Markie.

The Diabolical One was no stranger to sampling, having used portions of the 1968 song “(You) Got What I Need” by Freddie Scott, for his big hit, “Just a Friend.” In a sign of how things were at the time, Markie is credited as a sole songwriter for “Just a Friend” — these days, the original songwriters would have been listed as co-writers for the newer song.

For his follow up album, 1991’s I Need a Haircut, Markie went back to the well for the album track “Alone Again.” As a song, it’s fine, albeit somewhat forgettable. It definitely seems like more of a filler track than anything else. In many ways, it’s a spiritual successor to “Just a Friend” — the lyrics are about how Biz is still down on his luck — only this time, instead of getting cheated on, he gets ditched by his supposed friends and ends up being all alone. Markie also purposely sings the chorus badly and off-key for comedic effect, which is a recurring trope in his work.

Most importantly, “Alone Again” also sampled its hook from an older song, in this case, Irish singer Gilbert O’Sullivan’s 1972 single, “Alone Again (Naturally).” Markie had written to O’Sullivan’s agent, asking for permission to use the sample, only to be denied. Markie used it anyway, and thus, a lawsuit was born.

In November 1991, Grand Upright Music (which owned O’Sullivan’s copyright) sued Markie and his label, Warner Bros., for copyright infringement in U.S. District Court for the Southern District of New York. According to Carl Falstrom of the Hastings Law Journal, the litigation was highly contentious from the beginning, with a fair amount of trash talk being exchanged by the lawyers involved. “At the end of this case, O’Sullivan will be singing that song all over again,” said Markie’s and Warner’s lawyer, Robert Cinque. Not to be outdone Grand Upright’s lawyer, Joseph D. “Jody” Pope, called Markie a thief while comparing him to a pickpocket.

However, the most important figure turned out to be the presiding judge, Kevin Thomas Duffy. Duffy, who had been the youngest member of the federal judiciary when he was appointed by President Richard Nixon in 1972, had a long, distinguished career on the bench, handling a number of high-profile cases, including the criminal trial of four defendants accused of planning the 1993 World Trade Center bombing, and several matters relating to organized crime. However, he had a mixed record when it came to his temperament, with some calling him difficult and unpleasant, while others saying he was an excellent judge.

For this case, however, numerous commentators have criticized him for his heavy-handed treatment of Markie and Warner Bros. In fact, right off the bat, Duffy set the tone for his December 1991 opinion by opening with a Biblical phrase: “Thou shalt not steal.”

It only got worse for Markie and Warner Bros. from there. Duffy completely dismissed their argument that sampling was common practice in hip hop, saying, essentially, that stealing is stealing. “Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused,” Duffy wrote. “The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country.”

For Duffy, the case turns on the simple fact that Markie had previously written to O’Sullivan’s camp to request permission to use the sample. “In writing this letter, counsel for Biz Markie admittedly was seeking ‘terms’ for the use of the material,” Duffy wrote. “One would not agree to pay to use the material of another unless there was a valid copyright! What more persuasive evidence can there be!”

Typically, in infringement cases, the finder of fact must engage in a detailed analysis of both recordings to see if they were substantially similar in violation of copyright law. For instance, the cases that ensnared George Harrison or John Fogerty and, in later years, Madonna, Led Zeppelin or Robin Thicke, all involved extensive testimony from experts and the artists themselves regarding whether the later recording was too close to the original. Duffy, however, skips over all of that and takes it as an article of faith that they were the same — otherwise why would Markie have tried to get permission?

“Duffy never explores the narrow question whether an unauthorized use of three words, and the accompaniment ostinato of plaintiff’s song, is sufficient grounds for a successful infringement claim,” Charles Cronin wrote in George Washington University Law School’s Music Copyright Infringement Resource blog. Cronin speculates that O’Sullivan (or his copyright holder) was simply upset about seeing his song repurposed for hip-hop, which was still very much a renegade art form at the time.

Others take issue with Duffy’s pontificating on the ethics of “stealing.” As The Ethan Hein Blog points out, Duffy’s claims are rich, considering popular music is all about taking, borrowing, repurposing or even co-opting things from prior artists. For instance, the Beatles used unauthorized samples in its experimental “Revolution 9” song off the White Album. Respected producers like Brian Eno did it, as well. Would Duffy have said the same thing to Sir Paul McCartney if he had been the defendant instead of the Biz?

And of course, there was Duffy’s biggest bombshell. At the end of his opinion, Duffy referred the matter to the U.S. Attorney’s office for a potential criminal investigation of Markie and Warner Bros. “This callous disregard for the law and for the rights of others requires not only the preliminary injunction sought by the plaintiff but also sterner measures,” he wrote. At the time, experts noted that copyright infringement prosecutions were rare, and indeed, no charges were ever filed against anyone involved with this case. Nevertheless, the line got much of the media attention and undoubtedly sent shockwaves throughout the music industry.

Duffy’s finding that Markie’s sample was per se copyright infringement also had a chilling effect on artists everywhere — especially in hip hop. “The decision rendered all unauthorized sampling legally suspect; no distinction seemingly could be made between small bites and large cuts, between instantly recognizable ‘trademarks’ and impossibly obscure and mundane banalities,” Falstrom wrote in his case note. “Instead the inquiry became cut and dried: Does someone else own the copyright? If so, then any unlicensed sample is an infringement.” As a result of this and the De La Soul settlement, licenses for samples became much more expensive, while record labels made sure to clear every single sample before a song or album would see the light of day.

The decision certainly had a major impact on Markie’s career. In light of Duffy’s ruling granting a preliminary injunction to Grand Upright Music, Warner requested that all record stores pull I Need a Haircut from its shelves. According to the Los Angeles Times, nearly 200,000 copies had been shipped since it was released Aug. 23. Eventually, the album was re-released without the offending track, and Markie and Warner settled the case with Grand Upright.

Markie pulled a George Harrison and made light of the situation, calling his next album All Samples Cleared! Nevertheless, his career slowed to a crawl following the lawsuit. Markie released only one more album following All Samples Cleared! — 2003’s Weekend Warrior. He released a few greatest hits albums over the last couple of decades, and made appearances for other rappers, including The Beastie Boys and Will Smith. His early albums, including The Biz Never Sleeps (which has “Just a Friend” on it) and I Need A Haircut, aren’t available on Spotify — probably because of all the sampling issues (as Slate points out, much of De La Soul’s back catalog is missing, too).

Instead, Markie focused on other things, including reinventing himself as a pop culture commentator, and becoming a frequent talking head on VH1 shows. He dabbled in acting and voiceover work, and became a fixture on kid’s shows like Yo Gabba Gabba!

To be fair, it’s possible that Biz was always going to struggle by the time the mid-90s rolled around, regardless of how the lawsuit had turned out. After all, Dr. Dre and gangsta rap ended a ton of careers — it’s doubtful that the Biz would have been able to survive that storm. Also, comedic acts tend to have short shelf lives (unless your name is “Weird Al” Yankovic). Maybe Biz was never going to have anything more than just one hit and a few fondly remembered albums.

But that turned out to be only a small part of his legacy. If the outpouring of emotion after his death is any indication, he seemed to have been a genuinely nice and funny person who was well-loved by almost everyone who knew him. If anything, it seemed to confirm that the sad, lonely life he rapped about in “Alone Again” was really a work of fiction — albeit one with some pretty significant real-life consequences.