Appeals Court Gives Drake a "Fair Use" Win in Sampling Case

Drake accepts Top Male Artist award at Billboard Music Awards - Getty - H 2019
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Drake has preserved his victory in a lawsuit that alleged he violated copyright by sampling a 1982 spoken-word recording, "Jimmy Smith Rap," in his own work, "Pound Cake/Paris Morton Music 2," off the 2013 album Nothing Was the Same. On Monday, the Second Circuit Court of Appeals affirmed the judgment of "fair use" of the copyrighted work. 

As previously discussed, the decision is notable because rulings of copyright "fair use" are rare in the realm of songcraft. Not often do judges parse the meaning of music to figure out whether there's transformative purpose.

"'Pound Cake' does just that," states today's summary judgment order. "The message of the 'Jimmy Smith Rap' is one about the supremacy of jazz to the derogation of other types of music, which — unlike jazz — will not last. On the other hand, 'Pound Cake' sends a counter message — that it is not jazz music that reigns supreme, but rather all 'real music,' regardless of genre."

In looking at 35 seconds of sampled music and rapping by Drake and Jay-Z, the panel of judges add, "'Pound Cake' criticizes the jazz-elitism that the 'Jimmy Smith Rap' espouses. By doing so, it uses the copyrighted work for 'a purpose, or imbues it with a character, different from that for which it was created.'”

On another factor — the effect of the use upon the potential market — the Second Circuit holds there is no evidence that “Pound Cake” usurps demand for “Jimmy Smith Rap,” particularly because the two works appeal to different audiences.

Here's the full decision.