Drake scored a big win as the Second Circuit affirmed his use of another work in one of his songs as “fair use.” Estate of Smith v. Graham, 799 F. App’x 36 (2d Cir. 2020). The original lawsuit alleged Drake violated a copyright by sampling a 1982 word recording, “Jimmy Smith Rap,” in his own song, “Pound Cake.”
In April 2014, the estate of Jimmy Smith filed suit against Drake, alleging infringement of the copyright of “Jimmy Smith Rap.” It is worthwhile to note that Drake had actually obtained a license to the sound recording, but not the composition. In 2017, the District Court ruled that the portion of “Jimmy Smith Rap” used in Drake’s song was fair use because Drake’s objective was “sharply different from the [original artist’s goals] in creating it.” Estate of Smith v. Cash Money Records, 253 F. Supp. 3d 737, 750 (S.D.N.Y. 2017).
In affirming the District Court, the Second Circuit considered four well known non-exclusive factors in determining the work constituted fair use. The statutory framework for analyzing fair use includes (1) the purpose and character of use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. See 17 U.S.C. § 107; see also TCA Television Corp. v. McCollum, 839 F.3d 168, 179 (2d Cir. 2016).
The Court held that the first factor supported fair use because Drake’s use of the copyrighted material was transformative. A transformative work is one that uses copyrighted material for a purpose that differs from that for which it was created. TCA, 839 F.3d at 180. “Jimmy Smith Rap” was one about the greatness of jazz, and painted a negative view of all other types of music. It proposed that jazz would stand the test of time, where other types of music would not. Drake’s “Pound Cake,” however, sent the message that all music reigned supreme, regardless of genre. The Court held that while “Jimmy Smith Rap” promoted the elitism of jazz music, “Pound Cake” criticized it. Because the message Drake presented contrasted that of “Jimmy Smith Rap,” the Court held the copyrighted work was used for “a purpose, or imbue[d] it with a character, different from that for which it was created.” The Court found that because the work was transformative, the second factor supported fair use. With respect to the third factor, which looks at “whether the amount and substantiality of the portion used in relation to the copyrighted work as a whole are reasonable in relation to the purpose of the copying, the Court found the amount “Pound Cake” borrowed from “Jimmy Smith Rap” was reasonable because it was “necessary to emphasize its own message: that the ultimate attribute of music is its authenticity, not the production process that created it.” The Court also found the fourth factor in favor of fair use because “Pound Cake” did not negatively affect the market for “Jimmy Smith Rap” or decrease the demand for it in any way. The Court emphasized that “Pound Cake” was rap and hip-hop music, and “Jimmy Smith Rap” was by a jazz musician about jazz music, and therefore the two works targeted different audiences.
This is an interesting case for copyright infringements because most sample cases focus on recording rights, as opposed to musical or lyrical rights. Because Drake’s label already had a license to the recording rights and also because Drake sampled more than 35 seconds of the copyrighted track, the entire issue rested on fair use. Drake won big, especially since there has been disparity in what courts around the country consider “reasonable” in sampling-centric copyright infringement lawsuits.