The federal Second Circuit Court of Appeals, here in New York, recently issued an opinion that is instructive on the legal question of “music sampling.” Sampling is using a small segment, the “sample,” of an older sound recording in a new song. Often, the older music, lyrics, or audio is played in the background while the newer music or rapping is played over it. Sampling is a technique that is common and popular in modern rap and hip hop music.
The recent opinion from the Second Circuit involved the 2013 song by Drake (with Jay-Z) called “Pound Cake.” “Pound Cake” is about seven minutes long. Toward the beginning of the song, Drake uses a 35-second sampling of a 1980s spoken-word jazz recording by Jimmy Smith. When the song came out, the heirs of Jimmy Smith claimed copyright infringement. Eventually, the Estate of Jimmy Smith filed a lawsuit against Drake. Drake defended the lawsuit by arguing that his sampling was “fair use.”
In general, copyright law prohibits others from using a musician’s or an artist’s work without permission. Fair use is an exception to the general rule. This exception is set out in the Copyright Act. See 17 U.S.C. § 107. The Copyright Act sets out four factors that the courts are instructed to evaluate when an argument of fair use is presented. The factors are:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
The first statutory factor is generally given the most weight and is considered by many courts to be the “heart of the fair use inquiry.” The central question with respect to the “purpose” is whether the use is “transformative.” This generally requires the new use to be providing some sort of critique or adding something new or infusing the older artistic work with a new meaning or message.
At the trial level, the court held that these factors weighed in favor of finding that Drake’s use of Jimmy Smith’s rap was “fair use.” See Estate of Smith v. Cash Money Records, Inc., 253 F. Supp. 3d 737 (S.D. N.Y. 2017). The court analyzed the messages of the two recordings. The words/lyrics from Jimmy Smith’s rap promoted the supremacy of jazz music over other types of music. As the lyrics said: “Jazz is the only real music that’s gonna last. All that other bullshit is here today and gone tomorrow.”
The lyrics of “Pound Cake” send a different message — a critiquing message. According to Drake, what’s “gonna last” is “real music,” not just jazz music. Drake repeated the tag line: “All that other bullshit is here today and gone tomorrow.” For the court, this was more than sufficient for a finding that Drake’s sampling was transformative. The new lyrics provided a critique of the older message infusing the older words with new meaning. The court also held that the amount of music sampling, 35 seconds, was reasonable.
On appeal, as noted, the Second Circuit agreed with the trial court and affirmed that Drake’s sampling was “fair use.” See Estate of James Oscar Smith v. Graham, Case No. 19-28 (2nd Cir. February 3, 2020).
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