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35 Second Excerpt From Jazz Album Found To Be Fair Use By Rapper

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  • Posted on: Jun 19 2017

Jimmy Smith is widely considered to have been one of the most influential and accomplished jazz musicians of his time, if not in jazz history. Smith, who died in 2005, revolutionized the use of the Hammond B3 organ in modern jazz, laying the groundwork for generations of jazz musicians to come.

Estate of James Oscar Smith v. Cash Money Records, Inc.

In 2013, rapper/singer/songwriter Drake released Pound Cake/Paris Morton Music 2 (“Pound Cake”) on his album, Nothing Was the Same. The track included a 35 second sample of the “Jimmy Smith Rap” (the “Rap” or “JSR”), a spoken word narrative that appeared on Smith’s 1982 album Off The Top.  Drake edited the excerpt of the Rap by moving and deleting words; however, he did not add any words to the sample.

Approximately one week before Drake released Nothing Was the Same, a music publisher that represents songwriters in negotiating the licensing of copyrights reviewed an advance copy of the album’s credits. The publisher noticed that Drake had secured a license for the recording, but not the composition, of the Rap. Thereafter, the publisher informed Jimmy Smith’s estate (the “Estate”) that Drake was using a portion of the Rap in the Pound Cake track. Two months after Drake released Nothing Was the Same, the Estate sent a cease and desist letter to the defendants, informing them that it had a copyright interest in the Pound Cake track.

After the Estate sued the defendants, both parties moved for summary judgment.

On May 30, 2017, William H. Pauley III, United States District Court Judge for the Southern District of New York, ruled that, although the case was not ripe for summary judgment on the question of whether the defendants infringed upon the Smith copyright, it was ripe for summary judgment on the issue of fair use. The Court found that Drake’s 35 second use of the Rap was permissible under the fair use doctrine, even though Drake and his record label failed to obtain the publishing rights to the song.

The Ruling

Copyright Infringement

As an initial matter, the Court addressed whether the defendants had infringed upon the Estate’s claimed copyright of the Rap. The Court concluded that neither party was entitled to summary judgment because genuine issues of material fact existed as to whether Smith was the author of the Rap and whether the sample used by Drake was entitled to copyright protection based on a subjective assessment of the similarity between Pound Cake and the Rap.

Fair Use

Having declined to grant summary judgment on the infringement claim, the Court turned to the defendants’ fair use affirmative defense. In doing so, the Court considered the four nonexclusive factors set forth in Section 107 of the Copyright Act of 1976: 1) the purpose and character of the 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.

Purpose and Character of the Use

Courts have referred to this factor as “[t]he heart of the fair use inquiry” because it focuses on the nature and purposes of the allegedly infringing use. Davis v. The Gap, Inc., 246 F.3d 152, 174 (2d Cir. 2001). Central to the inquiry is “whether and to what extent the new work is ‘transformative.’” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). The reason: “[t]he more the appropriator is using the copied material for new, transformative purposes, the more it serves copyright’s goal of enriching public knowledge and the less likely it is that the appropriation will serve as a substitute for the original or its plausible derivatives.” Authors Guild v. Google, Inc., 804 F.3d 202, 214 (2d Cir. 2015). Accordingly, the relevant inquiry “is whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Campbell, 510 U.S. at 579 (internal quotationdrakesamplefairuses omitted).

Applying these principals, the Court found that Pound Cake fundamentally altered the message of the Rap.  By changing the words from “Jazz is the only real music that’s gonna last” to “Only real music is gonna last,” Drake had “transformed Jimmy Smith’s dismissive comment about non-jazz music into a statement on the relevance and staying power of ‘real music,’ regardless of genre.”

Defendants’ use of JSR is transformative regardless of whether the average listener would identify the source of the sample and immediately comprehend Drake’s purposes. The critical question is “how the work in question appears to the reasonable observer,” not the quality or accessibility of the commentary. The average listener of Pound Cake would understand the sampled portions of JSR as a statement that, regardless of how a song was made or how one might classify it, “only real music is gonna last.” Because this purpose is “sharply different” from Jimmy Smith’s purpose in creating the original track, Defendants’ use is transformative and this factor weighs in favor of a finding of fair use. [Orig’l emphasis, citations omitted.]

The Court rejected the plaintiffs’ argument that Drake’s use of the JSR could not be transformative because the copied portion was not readily identifiable and did not identify Smith. Noting that the plaintiffs were seeking to apply “the standard for fair use in parody to this non-parodic use,” the Court found that Drake had used the Rap in furtherance of a “distinct creative or communicative objective[ ]” and, therefore, his use “was a transformative one.” Citation and internal quotation marks omitted.

Nature of the Copyrighted Work

Noting that this factor is rarely determinative, the Court considered two factors: (1) whether the work is expressive or creative, such as a work of fiction, or more factual, with greater leeway being allowed to a claim of fair use where the work is factual or informational, and (2) whether the work is published or unpublished, with the scope for fair use involving unpublished works being considerably narrower.

The Court found that because the JSR is a work of creative expression, “this factor weighs against a finding of fair use.” The Court noted, however, that “[t]his factor is of particularly limited usefulness in this case” because it had already determined that Drake used the Rap “for a transformative purpose.” Citations and internal quotation marks omitted.

Amount and Substantiality of the Portion Used

The test under this factor is “whether the quantity and value of the materials used[] are reasonable in relation to the purpose of the copying.” Blanch v. Koons, 467 F.3d 244, 257 (2d Cir. 2006). As the Court observed, “a finding of fair use is more likely when small amounts, or less important passages, are copied than when the copying is more extensive, or encompasses the most important parts of the original.” Authors Guild, 804 F.3d at 221.

Applying the foregoing test, the Court held that the amount taken by the defendants was reasonable and in proportion to the needs of the intended transformative use. The Court found that the excerpt was not extraneous to Drake’s statement on the importance of “real” music, and that the use of the lines in the Rap drove the point home: “The full extent of the commentary is … that many musicians make records in similar ways …, but that only “real” music—regardless of creative process or genre—will stand the test of time.” The Court rejected the plaintiffs’ argument that the defendants “appropriated an unreasonable portion of JSR when they used thirty-five seconds of the one-minute track, and that any statement on the staying power of ‘real’ music would necessitate the use of only that single line.”

Effect on the Market for the Copyrighted Work

Under this factor, courts analyze “the effect of the [secondary] use upon the potential market for or value of the copyrighted work,” 17 U.S.C. § 107(4), by considering “whether the copy brings to the marketplace a competing substitute for the original, or its derivative, so as to deprive the rights holder of significant revenues because of the likelihood that potential purchasers may opt to acquire the copy in preference to the original.” Authors Guild, 804 F.3d at 223. “The more transformative the secondary use, the less likelihood that the secondary use substitutes for the original.” Castle Rock Entm’t, Inc. v. Carol Pub. Grp., Inc., 150 F.3d 132, 145 (2d Cir. 1998).

The Court found that there was no evidence “to suggest that Pound Cake usurps any potential market for JSR or its derivatives” because Smith targeted a “sharply” different market than Drake: “JSR, a spoken-word criticism of non-jazz music at the end of an improvisational jazz album, targets a sharply different primary market than Pound Cake, a hip-hop track.” Moreover, the plaintiffs “never attempted to establish a market for licensed derivative uses of the JSR composition copyright until Defendants used the recording on the Album,” a fatal defect, observed the Court, that undermined the strength of the plaintiffs’ usurpation argument.

A copy of Estate of James Oscar Smith v. Cash Money Records, Inc., et al., Case No. 14-cv-2703 (S.D.N.Y.) can be found here.

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