On May 30, 2017, Judge William H. Pauley III, in the Southern District of New York, ruled that rapper-singer-songwriter Drake was permitted to use a sample of jazz artist Jimmy Smith based on the fair use doctrine, even though Drake and his record label did not license the publishing rights to the song. The court found that Drake’s use of the track was “transformative” because it changed Smith’s critique that jazz is the only “real” music into a suggestion that Drake’s hip-hop music was also real.

In 2013, Drake released a track titled “Pound Cake/Paris Morton Music 2,” which includes a sample of Jimmy Smith’s spoken-word track “Jimmy Smith Rap.” Smith reminisces about “the old days,” and expresses his joy and gratitude in creating the record. The track also contains a commentary on jazz.

Jazz is the only real music that’s gonna last. All that other bullshit is here today and gone tomorrow. But jazz was, is and always will be.

Drake’s “Pound Cake/Paris Morton Music 2” edits the sample of “Jimmy Smith Rap,” moving and deleting words, but does not add any words. Most significantly, “Pound Cake” restructures Smith’s critique of other genres of music.

Only real music is gonna last, all that other bullshit is here today and gone tomorrow.

“Pound Cake” was contained on Drake’s 2013 album, Nothing Was the Same, which was released by Cash Money Records and Universal Republic Records. Cash Money licensed the master recording of “Jimmy Smith Rap” but did not secure publishing rights.

After a music publisher informed Jimmy Smith’s estate about the potential infringement, the estate sued Cash Money and others for copyright infringement. Both parties filed motions for summary judgment, and the court ruled that the Drake track constituted fair use.

Courts consider the following four factors when determining fair use:

(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.

(4) The effect of the use upon the potential market for or value of the copyrighted work.[1]

Here, the court found that the first, third and fourth factors suggest that Drake’s song constitutes fair use. Courts generally accord the first factor the most weight. The crux of this factor is whether the new work is merely a copy of the original work or it adds something with a new purpose or character, i.e., whether the new work is transformative. Here, the court found that Drake’s use was transformative. Smith talked about jazz being the only real music and dismissed all other genres. Judge Pauley found that Drake significantly changed this comment to state that any genre of real music, including hip-hop, has staying power. The court explained that because Drake’s purpose in using the track was “sharply different” from Smith’s purpose – that only “real” music would last, not that only “jazz” would last – the work is transformative.

The court also found that the amount of the use was reasonable and Drake’s track does not usurp any market for Smith’s track. The court declined to rule on whether the defendants infringed the copyright. But because the court found that this use would constitute fair use, the court was able to rule in favor of Drake and his record label.

While most music sampling cases tend to involve short musical passages (e.g., VMG Salsoul, LLC v. Ciccone, 824 .3d 871 (9th Cir. 2016)) or a repeated vocal syllable (e.g., TufAmerica, Inc. v. Warner Bros. Music Corp., 67 F. Supp. 3d 590 (S.D.N.Y. 2014)), the sample at issue here is a 35-second sample of nothing but spoken word. As with the musical parody fair use cases (e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994); Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986)), the alleged infringement here primarily altered the linguistic meaning of the original work, perhaps making it easier for the court to find a transformative use. It is interesting to speculate whether a 35-second sample of a purely instrumental passage with a note or two taken out or a slightly altered drumbeat would have been treated in the same way by a court.

[1]17 U.S.C. § 107.