Drake Beats Lawsuit Over Sampling With Winning "Fair Use" Argument
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 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 bull---- 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 is gonna last," states the sampled portion in Drake's track.
"All that other bull---- 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," writes
Pauley.
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."
"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," writes the judge. "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.
Source: The Hollywood Reporter
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