District court holds hip-hop artist Drake’s use of 35 seconds of jazz artist’s spoken-word track is protected fair use because wording was changed enough to make use transformative.

In 1982, jazz artist James Oscar Smith, known professionally as Jimmy Smith, released an album titled “Off the Top,” which included the spoken-word track “Jimmy Smith Rap.” In 2013, hip-hop artist Drake released his album “Nothing Was the Same,” which included a song titled “Pound Cake/Paris Morton Music 2” that sampled 35 seconds of “Jimmy Smith Rap.” Drake’s record label obtained a license to use Smith’s recording but not his lyrical composition. Smith died in 2005. His estate and a music publishing company named Hebrew Hustle Inc. sued Cash Money Records Inc., Drake and others in 2014, claiming “Pound Cake” infringed the copyright in the “Jimmy Smith Rap” lyrics. The parties cross-moved for summary judgment. The district court granted the defendants’ motion for summary judgment on their fair use defense and denied the plaintiffs’ motion on their copyright infringement claim.

To establish copyright infringement, two elements must be established: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” The district court concluded that neither party was entitled to summary judgment on the plaintiffs’ copyright infringement claim because genuine disputes of fact existed as to whether Smith was the author of the spoken-word track and whether the copied portions were entitled to copyright protection based on a subjective assessment.

The district court then considered the defendants’ motion for summary judgment on their fair use defense. The district court analyzed each of the Copyright Act’s four nonexclusive fair use factors: 1) the purpose and character of the use, (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.

First, the district court found that “Pound Cake” fundamentally alters the message of “Jimmy Smith 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.” The district court rejected the plaintiffs’ allegations that the use cannot be transformative because the copied portions are not readily identifiable and do not identify Smith. It held that the defendants’ use of “Jimmy Smith Rap” is “transformative regardless of whether the average listener would identify the source of the sample and immediately comprehend Drake’s purposes.”

Turning to the second factor, the nature of the copyrighted work, the district court found that because “Jimmy Smith Rap” is a work of creative expression, this factor weighs against a finding of fair use. However, the district court noted that this factor is of “limited usefulness” where the creative work is being used for a transformative purpose.

On the third factor, the amount and substantiality of the portion used, the district court rejected the plaintiffs’ argument that the defendants appropriated an unreasonable portion when they used 35 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.” The district court found the amount taken by the defendants to be reasonable in proportion to the needs of the intended transformative use.

Finally, in analyzing the fourth factor, the effect of the use upon the potential market for or value of the copyrighted work, the district court concluded there was no evidence suggesting that “Pound Cake” usurps any potential market for “Jimmy Smith Rap,” because the jazz album targets a market “sharply” different from that for a hip-hop album.

Summary prepared by Tal Dickstein, Sasha Segall and Sara Slavin.