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Drake, along with various associated record labels and music publishers, pulled off an impressive achievement on Tuesday by convincing a judge that his song “Pound Cake/Paris Morton Music 2,” off the 2013 album Nothing Was the Same, fairly sampled a 1982 spoken-word recording, “Jimmy Smith Rap,” and that there is no liability for copyright infringement.
What makes Drake’s summary judgment victory against the Estate of James Oscar Smith particularly noteworthy is that rulings of copyright “fair use” are rare in the realm of songcraft. When it comes to documentaries and less abstract art forms, judges can parse meaning and figure out whether use of copyrighted material is transformative. But in disputes over song sampling, parties have long tended to wage fights over other issues like ownership records and whether the copying is sufficiently substantial. This “Pound Cake” case had those elements as well, but this one is now ending at the trial court because U.S. District Court judge William H. Pauley III has taken the unusual step of addressing Drake’s purpose in sampling.
According to the facts laid out in Pauley’s opinion, Cash Money hired a music license company to obtain all necessary licenses. The defendants obtained a license for the recording of “Jimmy Smith Rap,” but clearing the composition became problematic. The Estate maintained it would not have granted a license for the composition because Jimmy Smith, a jazz musician, “wasn’t a fan of hip hop.”
Indeed, Smith’s 1982 recording, which spoke of A&R men and going into the studio, is evidence of such bias.
“Jazz is the only real music that’s gonna last,” states the lyrics. “All that other bullshit is here today and gone tomorrow. But jazz was, is and always will be.”
On Drake’s song, he cuts it down.
“Only real music’s gonna last,” states the sampled portion in Drake’s track. “All that other bullshit is here today and gone tomorrow.”
Judge Pauley writes that there can be no reasonable dispute that the key phrase in Smith’s song “is an unequivocal statement on the primacy of jazz over all other forms of popular music,” and that Drake’s use, by contrast, “transforms Jimmy Smith’s brazen dismissal of all non-jazz music into a statement that ‘real music,’ with no qualifiers, is ‘the only thing that’s gonna last.'”
Thus, the judge adds, the purpose is “sharply different” from the original artist’s.
“This is precisely the type of use that ‘adds something new, with a further purpose or different character, altering the first [work] with new expression, meaning or message,” writes the judge.
The plaintiffs attempted to contend that Drake’s fans and most other listeners wouldn’t be able to identify Jimmy Smith nor recognize that “Pound Cake” is commenting on an obscure track by a relatively unknown jazz musician.
Judge Pauley responds that while it’s true that in cases of parody, an average observer needs to identify the target of derision, it’s not a universal prerequisite for finding a transformative use. He gives an example before commenting that Drake used Smith’s work as “raw material” for his creative objective. The judge also comments that use of “Jimmy Smith Rap” is transformative regardless of whether the average listener would identify the source and comprehend Drake’s purpose.
“The critical question is ‘how the work in question appears to the reasonable observer,’ not the quality or accessibility of the commentary,” Pauley writes.
The judge then measures other factors beyond purpose and character informing a decision on fair use. What commands attention here is the discussion of the amount and substantiality of the portion used.
The Estate argued that if the staying power of “real” music was the message, then Drake should have only used that line. Instead, he used 35 seconds of the “Jimmy Smith Rap,” including the lines, “We had champagne in the studio, of course, you know, compliments of the company, and we just laid back and did it. So we hope you enjoy listening to this album half as much as we enjoyed playing it for you. Because we had a ball.”
Pauley rejects this argument, finding the amount taken was “reasonable.”
“Far from being extraneous to ‘Pound Cake’s’ statement on the importance of ‘real’ music, Defendants’ use of the lines describing the recording of Off the Top serve to drive the point home,” the judge writes. “The full extent of the commentary is, in this Court’s view, that many musicians make records in similar ways (e.g. with the help of A&R experts or the stimulating effects of champagne), but that only ‘real’ music — regardless of creative process or genre — will stand the test of time.”
The defendants were represented by Cynthia Arato at Shapiro Arato and Christine Lepera at Mitchell Silberberg & Knupp. Here’s the full opinion, which may get appellate review on whether it also deserves to stand the test of time.
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