![]() A work is transformative when it “uses the copyrighted material itself for a purpose, or imbues it with a character, different from that for which it was created.” … “Pound Cake” does just that. The first factor supports fair use because the use was transformative. ![]() ![]() On the first factor, they find the use clearly transformative, in part because the minor edit of the clip changes its meaning: However, for whatever reason, the case focused on a fair use argument, and as the appeals court notes, it clearly supports a ruling that this sample is fair use. It’s just him talking extemporaneously, and there’s already a copyright on the recording itself. And it’s this that’s found to be fair use.įrankly, I still think it’s even more convincing to state that there’s no composition copyright here because there’s no song. So, then, after registering the copyright on the composition (and even though the sound recording was properly licensed), the Jimmy Smith Estate sued Drake. It was only his estate that registered the copyright 31 years after the not-really-a-song was released and only after they heard the Drake song and decided they didn’t like it at all. Hell, even Jimmy Smith never registered the copyright as a composition. Here, it seems that Drake’s label didn’t license the “composition” to pay the “songwriter.” And your first reaction might damn well be “what songwriter? there’s no damn song!” And you’d be right. You have to do one thing to license the sound recording, but something else entirely to license the “composition.” The theory there is that one license pays the musicians and another pays the songwriters (though, in reality, it’s often middlemen who get the money). As we’ve discussed elsewhere, when using a song, there are multiple different licenses you might need to get. You forgot: music licensing is a swampy mess of insanity and patched together weirdness. So everything should be fine, right? Wrong. All that other bullshit is here today and gone tomorrow.” Apparently the Jimmy Smith estate wasn’t too happy with the changed meaning.īut here’s the oddity: Drake’s label licensed that track. All the other bullshit is here today and gone tomorrow” to just saying “Only real music’s gonna last. The Drake song uses a large chunk of the Jimmy Smith Rap unchanged… but does make a few small edits, including changing Smith from saying “Jazz is the only real music that’s gonna last. But the recording got included on the album as a separate track. You might think that the Jimmy Smith Rap is a rap song, but it’s just Jimmy Smith talking (it appears extemporaneously) about the fun he and some others had making the album Off the Top. Drake’s song Pound Cake / Paris Morton Music 2 opens with a slightly altered, but clear “sample” of famed jazz artist Jimmy Smith’s Jimmy Smith Rap. ![]() To explain those details, I’m going to first repeat what I wrote about the background of the original case, because it’s important, before getting into the new ruling. Those details highlight why this is a unique case. That said, as I noted in the original post, however, the details here are at least somewhat specific, which might explain the court’s reasoning in making it non-precedential. That’s actually quite disappointing, given how few cases there have been that actually ruled on the fair use of sampling. Thankfully, the 2nd Circuit appeals court has now upheld the lower court’s fair use finding, with a quick and to the point ruling - though they made it a summary order, which means that the panel of judges “believes that no jurisprudential purpose is served by” the order, and thus it shouldn’t be cited in future cases. Still, in the age of Blurred Lines-like decisions, and the influx of similar lawsuits over mere inspiration, it seemed unlikely that we’d ever get a clean ruling on whether or not certain types of sampling - such as those that use tiny bits or that alter the sample significantly - were fair use. As we noted in that post, it is stunning how bad courts have been in determining whether or not sampled music is fair use - with a couple of famously preposterous rulings on the book, including one where the judge seemed more focused on giving biblical justifications for his rulings, rather than Constitutional ones. Two and a half years ago, we wrote about a nice fair use victory for Drake with regards to a track that he had sampled. ![]()
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