Appeals Court Upholds Drake Sampling Fair Use Victory

While a recent court decision to uphold Drake’s sampling demonstrates a rare victory for fair use in an era riddled with questionable industry lawsuits, the victory is somewhat marred by the court’s recommendation that the case not be cited in similar future legal disputes.

Guest post by Mike Masnick of Techdirt

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. 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. 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. Yet here we are.

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. That’s actually quite disappointing, given how few cases there have been that actually ruled on the fair use of sampling.

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post, however, the details here are at least somewhat specific, which might explain the court’s reasoning in making it non-precedential. Those details highlight why this is a unique case. 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.

The details here are… rather specific. 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. 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. But the recording got included on the album as a separate track. It’s not a song. It’s just Jimmy Smith talking. 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. All the other bullshit is here today and gone tomorrow” to just saying “Only real music’s gonna last. All that other bullshit is here today and gone tomorrow.” Apparently the Jimmy Smith estate wasn’t too happy with the changed meaning.

But here’s the oddity: Drake’s label licensed that track. So everything should be fine, right? Wrong. You forgot: music licensing is a swampy mess of insanity and patched together weirdness. As we’ve discussed elsewhere, when using a song, there are multiple different licenses you might need to get. 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). 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. Hell, even Jimmy Smith never registered the copyright as a composition. 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.

So, then, after registering the copyright on the composition (and even though the sound recording was properly licensed), the Jimmy Smith Estate sued Drake. And it’s this that’s found to be fair use.

Frankly, I still think it’s even more convincing to state that there’s no composition copyright here because there’s no song. It’s just him talking extemporaneously, and there’s already a copyright on the recording itself. 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. On the first factor, they find the use clearly transformative, in part because the minor edit of the clip changes its meaning:

The first factor supports fair use because the use was transformative. 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 message of the “Jimmy Smith Rap” is one about the supremacy of jazz to the derogation of other types of music, which—unlike jazz—will not last. On the other hand, “Pound Cake” sends a counter message—that it is not jazz music that reigns supreme, but rather all “real music,” regardless of genre…. Beyond the text of the lyrics themselves, “Pound Cake” situates its sampling of approximately thirty-five seconds of the “Jimmy Smith Rap” at the beginning of an approximately seven-minute-long hip-hop song in which Drake and Shawn Carter, professionally known as Jay-Z, rap about the greatness and authenticity of their work. Through both the alteration of the “Jimmy Smith Rap” and the rest of the rap’s lyrics, “Pound Cake” emphasizes that it is not the genre but the authenticity of the music that matters. In this manner, “Pound Cake” criticizes the jazz-elitism that the “Jimmy Smith Rap” espouses. By doing so, it uses the copyrighted work for “a purpose, or imbues it with a character, different from that for which it was created.”

The analysis of the second factor — the nature of the copyrighted work — perplexes me again. In both the lower court and the appeals court they actually say this leans against fair use. But, again, the fact that this is not a song, that there is no “composition” per se (and that no one registered the copyright on it until much, much later) would all seem to suggest that the “nature” of the work deserves minimal copyright protection and thus leans towards fair use. But here, the court basically says that this factor leans against fair use, but it’s not that important so we’ll just move on:

We need not spend much time on the second factor, the nature of the copyrighted work. This factor “has rarely played a significant role in the determination of a fair use dispute,” and when a work is transformative, the factor may nonetheless support fair use…. The district court found that the second factor weighs against a finding of fair use here. This factor is of “limited usefulness,” however, where, as we have determined applies here, “the creative work of art is being used for a transformative purpose.”

The third factor, on how much is used, again supports fair use:

The third factor too supports fair use. This factor 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.”…. We have been clear, however, that “the law does not require that the secondary artist may take no more than is necessary.” Cariou v. Prince, 714 F.3d 694, 710 (2d Cir. 2013). “The secondary use must be permitted to conjure up at least enough of the original to fulfill its transformative purpose.” Id. (brackets, internal quotation marks, and citations omitted). Here, the amount used by Defendants is reasonable. While “Pound Cake” borrows language from the “Jimmy Smith Rap” detailing the production process for Off the Top, this was necessary to emphasize its own message: that the ultimate attribute of music is its authenticity, not the production process that created it.

And, finally, the 4th factor, regarding the impact on the market, again easily supports fair use:

Finally, the fourth factor also weighs in favor of fair use. “The final statutory factor considers the effect of the use upon the potential market for or value of the copyrighted work, focusing on whether the secondary use usurps demand for the protected work by serving as a market substitute.”… In the case at hand, there is no evidence that “Pound Cake” usurps demand for “Jimmy Smith Rap” or otherwise cause a negative market effect. “Pound Cake,” a piece by a hip-hop artist about rap and hip-hop music, appeals to a much different audience than does “Jimmy Smith Rap,” which was a piece by a jazz musician on a jazz album about jazz music…. Nor is there evidence of the existence of an active market for “Jimmy Smith Rap,” which is vital for defeating Defendants’ fair use defense.

And thus, fair use prevails. It’s always nice that fair use prevails, but it’s disappointing that the court felt that this ruling should remain non-precedential. Contrary to their belief, having good, clear fair use victories at the appellate level is always useful for other cases.