Dola Adebayo
“Only real music’s gonna last. All that other bullsh** is here today and gone tomorrow…”
Earlier this year, the Second Circuit Court of Appeals affirmed a major decision holding recording artist Aubrey “Drake” Graham’s sampling of Jimmy Smith as fair use.[1]
When it comes to sampling in music, artists and producers must go through a structural process of obtaining licenses to incorporate other works into their own. There are normally two licenses that are required for a sample clearance: the license for the original musical composition (i.e. sheet music) and the license for the original sound recording.[2]
For Drake’s song Pound Cake, (featured on his 2013 album, Nothing Was the Same), Drake samples Jimmy Smith’s spoken word record, “Jimmy Smith Rap,” to creatively allude to his own album’s recording process and add commentary on the longevity of “real music.”[3] Drake’s label obtained the recording license of “Jimmy Smith Rap,” but not the composition license. Since Drake’s label did not obtain this license, Smith’s Estate embarked on a 6-year-long legal battle against Drake and Cash Money Records claiming copyright infringement of the written composition.
Drake’s best legal defense is premised on an age-old doctrine known as fair use which stresses that any use by reproduction in copies for purposes like “criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright.”[4] The factors considered to determine fair use are: (1) the purpose and character of the use (including whether it is commercial or nonprofit); (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.[5]
When it comes to sampling, it’s pretty rare to succeed on a fair use defense. Judges usually do not go the lengths to determine whether the music in question has a transformative purpose. Furthermore, melodic samples are more easily found to be protected, therefore failing to satisfy the first factor of the fair use test. In the past few years, courts have sided with plaintiffs claiming infringement when their music was sampled.[6]
Nevertheless, the district court as well as the Second Circuit found that Smith’s sample in “Pound Cake” satisfied all four of the fair use factors. Smith’s spoken word aspect in the sample made it easier to transform and also satisfy the first factor of the fair use test as an imbuement “with a character, different from which it was created.”[7] The Second Circuit believed Smith’s original record was a commentary on jazz being “real music” in relation to other genres. Drake took Smith’s words and transformed them into a critique, stating that “real music” (regardless of genre) will last in comparison to all other types of music. “In this manner, ‘Pound Cake’ criticizes the jazz-elitism that the ‘Jimmy Smith Rap’ espouses.”[8] The second factor of the copyrighted work’s nature was of limited use to the courts because Drake’s use of the song was already found to be transformative.[9] The third factor was considered satisfied because the use of the sample at its length was reasonable in relation to its purpose.[10] For the fourth factor, both courts agreed that Drake’s song would not affect the market or value of Smith’s record because the two works appealed to different audiences.[11]
This is a rare victory for recording artists that sample other copyrighted works. Fair use may not be a reliable defensive outlet, but if the sampled work has been modified to a point where a court sees it satisfying the 4-factor test, then the purpose of the copyright is preserved and the sampling work still furthers the goal of promoting “the progress of science and useful arts.”[12]
[1] Estate of Smith v. Graham, 799 Fed. Appx. 36
[2] https://www.tunecore.com/guides/music-sampling-and-beat-licensing-101
[3] Drake – Pound Cake (excerpt) (available at: https://cpb-us-w2.wpmucdn.com/blogs.law.gwu.edu/dist/a/4/files/2018/12/Drake-Pound-Cake-26f70s0.mp3
[4] 17 U.S.C. §107
[5] Id.
[6] See Williams v. Gaye, 885 F.3d 1150; Gray v. Perry, 2019 U.S. Dist. LEXIS 113807
[7] TCA TV Corp. v. McCollum, 839 F.3d 168, 179.
[8] Summary Order: Estate of Smith v. Graham (available at: https://cpb-us-w2.wpmucdn.com/blogs.law.gwu.edu/dist/a/4/files/2020/02/SmithDrake-Summary-Order.pdf)
[9] Id.
[10] Id.
[11] Id.
[12] Eldred v. Ashcroft, 537 U.S. 186 (“The copyright-clause portion of the Federal Constitution's copyright and patent clause (Art I, 8, cl 8) grants Congress the power to promote the progress of science and useful arts by securing for limited times to authors the exclusive right to their writings.”)