BORROWED

The memorandum and order opens on four words inside quotation marks, with a footnote number attached. “Thou shalt not steal.” The footnote sends the reader to Exodus, Chapter 20: Verse 15. By the close of that first paragraph Kevin Thomas Duffy, District Judge, has set the frame: the conduct in front of him, he wrote, “violates not only the Seventh Commandment, but also the copyright laws of this country.”

The case is Grand Upright Music Ltd. v. Warner Bros. Records, Inc., decided in the Southern District of New York on December 17, 1991. It is a rap music case. The story it carries: the day sampling became theft, the ruling that made clearance mandatory. The court’s own findings are the reason that story cannot stand.

Start with what the order is. It is a preliminary injunction, sought by order to show cause, and the defendants admitted the use. Their post-hearing memorandum conceded that the Biz Markie album “embodies the rap recording” at issue, one that uses three words from a composition written and performed by Gilbert O’Sullivan “and a portion of the music taken from the O’Sullivan recording.” With the use conceded, a single question seemed to be left:

The only issue, therefore, seems to be who owns the copyright to the song “Alone Again (Naturally)” and the master recording thereof made by Gilbert O’Sullivan.

Ownership. Not whether a sample infringes. The order does not analyze that question.

Now read the findings at star pages 184 and 185, where the court names who already knew the rule. Each defendant who testified, the court found, knew a license was necessary “before using the copyrighted work in another piece.” The finding walks three of the corporate defendants one at a time, each with a deposition cited by name and date. “Warner Bros. Records, Inc. had a department set up specifically to obtain such clearances.” Cold Chillin’ Records, Inc. “knew that such clearances were necessary.”

A department. At Warner Bros. Records, set up specifically to obtain clearances before this order existed.

The correspondence says it again. Before the album was released the various defendants apparently discussed the need for a license among themselves, decided to contact O’Sullivan, and wrote to his brother and agent with a copy of the tape enclosed. An attorney for the defendant wrote that Biz Markie “would like to obtain your consent” to the use of the original composition. The most persuasive evidence of ownership, the court held, “comes from the actions and admissions of the defendants,” and it gave the reason in two sentences that both end in exclamation points: “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!”

Then comes the August 16 letter, sent by Biz Markie’s attorneys to counsel for Cold Chillin’ Records and copied to the other defendants. It records that Cold Chillin’ knew that “other sample clearance requests were pending at that time.” It names a matter the label had handled properly, “as it did in the situation involving the Eagles samples.” It puts the failure at a precise place: the release went out “prior to the appropriate consents being secured in connection with such samples.”

That is not a rule being made. That is a rule being kept badly by defendants the court found knew it. One of them had a department built to keep it.

What follows is on the table, not in the Docket.

The excuse the defendants offered appears twice in this document, and the two appearances do not name the same business. In the opening paragraph the court recites it as the claim that “stealing is rampant in the music business.” Footnote 2 disposes of the same argument inside a narrower category:

The argument suggested by the defendants that they should be excused because others in the “rap music” business are also engaged in illegal activity is totally specious. The mere statement of the argument is its own refutation.

One order, two recitals of one argument, and the category shrinks between them. The court does not explain the difference. It is on the page in its own hand, and the refusal lands on the narrower name.

The narrower name is rap music.

The last paragraph grants the injunction and gives the plaintiff five days to submit a decree. Then it adds the referral:

This matter is respectfully referred to the United States Attorney for the Southern District of New York for consideration of prosecution of these defendants under 17 U.S.C. § 506(a) and 18 U.S.C. § 2319.

The order’s next-to-last paragraph ends on how the court describes the defendants’ conduct. Their “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.” And footnote 3 keeps the criminal question standing on its own legs: “The resolution of any issue left open in this civil matter should have no bearing on the potential criminal liability in the unique circumstances presented here.” Whatever the civil case did next, the referral was not to be read as answered by it.

The referral says “these defendants.” The caption names three individuals. One is Marcel Hall, professionally known as Biz Markie.

The court plainly grants the “preliminary injunction sought by the plaintiff.” A referral to a federal prosecutor is not ordinary; footnote 3 itself speaks of “the unique circumstances presented here.” The order does both inside the same paragraph, and it is the second one that changes what this file is.

Nothing in this order invents a requirement. Nothing in it analyzes whether a sample infringes. What it adds to a rule the defendants knew is a prosecutor.

The defendants knew. Warner Bros. had the department. Biz Markie’s lawyers had already written the letter. Beyond the injunction, what was new on December 17, 1991, was the referral.

Correction

Corrected 2026-10-17. This casefile published on August 7, 2026. Two sentences are named here rather than quietly repaired. They said the rule was “kept badly by an industry that had already built the paperwork for keeping it” and ended “The industry knew.” The court made no finding about an industry. Its findings at star pages 184 to 185 are about the defendants: “Each defendant who testified knew that it is necessary to obtain a license,” “Warner Bros. Records, Inc. had a department set up specifically to obtain such clearances,” “WEA International, Inc. knew it had to obtain” clearances, and “Cold Chillin’ Records, Inc. knew that such clearances were necessary.” The only statement about the music business as a whole is the defendants’ own argument, which the court called “totally specious.” The first sentence now says the rule was kept badly by “defendants the court found knew it. One of them had a department built to keep it.” The second now reads “The defendants knew.” The excerpt said “His own findings say clearance was already standard practice,” and the docket item opened “Clearance was already the practice”; both now say the defendants knew clearance was required.

Source: Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182, 184-85 (S.D.N.Y. Dec. 17, 1991), Duffy, J. Read on October 17, 2026.

Corrected 2026-10-18. One page reference is named here rather than quietly repaired. The essay said “Now read the findings at star page 185.” The finding begins on star page 184, “Each defendant who testified knew that it is necessary to obtain a license,” and continues onto page 185, where the break falls inside the word “holder.” The line now reads “star pages 184 and 185.” The source record carried the same page and is corrected to match.

Source: Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182, 184-85 (S.D.N.Y. Dec. 17, 1991), Duffy, J., the full CourtListener text filed with this casefile. Read on October 18, 2026.

Corrected 2026-10-22. After two corrections in one week, this casefile was re-read line by line against the order, and each line that says what the court found or did was checked against the passage it rests on. These lines said more than the order does and are named here rather than quietly repaired.

• The subtitle and the paragraph before the last said “a rule every party already knew.” The court’s findings name the defendants who testified, “Each defendant who testified knew that it is necessary to obtain a license,” and Biz Markie’s attorneys, who “also knew of this obligation,” and conclude that “the defendants knew that they were violating the plaintiff’s rights as well as the rights of others.” The court made no finding about what the plaintiff knew of the clearance rule. Both lines now read “a rule the defendants knew.”
• The subtitle and one paragraph called the clearance department “staffed and standing” and both placed it at a major label; the excerpt said “a major label” and the record panel said “Staffed and standing.” The order says only that “Warner Bros. Records, Inc. had a department set up specifically to obtain such clearances.” Those lines now say that.
• The record panel said clearance practice was “Already standard,” on “the court’s own findings.” No finding in the order concerns practice in the business. It now reads “Clearance requirement: Known to the defendants.”
• The essay said “Nothing in it decides whether a sample infringes,” and a docket note said the question “was not put to the court and the court did not decide it.” The order says the defendants’ conduct “violates not only the Seventh Commandment, but also the copyright laws of this country.” What it does not do is analyze the question. Both lines now say the order does not analyze it. Two other lines, that the question was “never in front of the court, because nobody put it there” and that the court “was never asked to” explain the two recitals, described briefs this file does not hold. The first now reads “The order does not analyze that question”; the second is cut.
• The finding, the essay said, “walks the corporate defendants one at a time.” It addresses three of the seven corporate defendants named in the caption. It now says three. A sentence on the caption said it “gives one of them his name”; the caption names three individuals, and the line now says so.
• Three passages dropped the court’s own hedges. Two left out “seems”: the order says the only issue “seems to be” ownership. One left out “the various” and “apparently”: the order says “the various defendants apparently discussed among themselves the need to obtain a license.” All three are restored. A sentence on the most persuasive evidence of ownership added “in the whole hearing,” which the court did not write; it is cut.
• A sentence stated what a preliminary injunction is for “when the record is one-sided and the harm is continuing.” The order states no such standard. The clause is cut, and the sentence’s claim that a preliminary injunction is “an ordinary instrument” goes with it; the line now quotes the order’s own “preliminary injunction sought by the plaintiff.” The essay also said the sentence “just above” the referral “says what the referral is for.” That sentence ends the paragraph before, and the court does not tie it to the referral; the line now says what it does say. The closing line now reads “Beyond the injunction, what was new on December 17, 1991, was the referral.” Two other cuts: “he intends to hold,” which claimed the judge’s intent, and “earlier,” which dated a matter the letter does not date.
• Four lines claimed more than the order supports. The excerpt said “What changed was not the rule”; the order never says whether the rule changed, and the line now reads “What changed was not what the defendants knew.” One sentence said the referral “separates this file from an ordinary civil order,” and another said a referral “is not ordinary”; the order does not say what is ordinary. The first is cut to “Then it adds the referral,” and the second now cites footnote 3’s own words, “the unique circumstances presented here.” The essay said “The narrower name is hip-hop”; footnote 2’s words are “rap music,” and the line now uses them. For the same reason, the opening’s “It is a hip-hop case” now reads “It is a rap music case.”

Source: Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182, 183-85 (S.D.N.Y. Dec. 17, 1991), Duffy, J., the full CourtListener text filed with this casefile. Read on October 22, 2026.