2 June 2017Copyright

Drake beats copyright claim with fair use argument

Rapper Drake has won a copyright infringement lawsuit after a federal judge ruled his sampling of a spoken-word jazz track was fair use.

In his song "Pound Cake/Paris Morton Music 2”, from  the 2013 album “Nothing Was the Same”, Drake sampled a 1982 spoken-word recording, "Jimmy Smith Rap”.

The original track, performed by jazz musician Jimmy Smith, said: “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 song samples around 35 seconds of the song, including the edited sentence of “only real music is gonna last, all that other bullshit is here today and gone tomorrow”.

The estate of Jimmy Smith sued Drake, and various music publishers and record labels, in April 2014 at the US District Court for the Southern District of New York.

But Drake’s legal team managed to convince the judge, US District Judge William Pauley, that the use of the track was fair.

Record label Cash Money had obtained a licence for the “Jimmy Smith Rap” recording, but not for the composition, according to the judge’s order, issued on Tuesday, May 30.

Pauley added that the estate maintained it would not have granted a licence for the composition because Jimmy Smith “wasn’t a fan of hip hop”.

In a 21 page judgement, Pauley explained that there can be no “reasonable dispute” that the key phrase of the “Jimmy Smith Rap” is an “unequivocal statement on the primacy of jazz over all other forms of popular music”.

He went on to say that Drake’s use of the rap transforms “brazen dismissal of all non-jazz music into a statement that ‘real music’, with no qualifiers, is ‘the only thing that’s gonna last’”.

“This is precisely the type of use that ‘adds something new, with a further purpose or different character, altering the first [work] with new expression, meaning, or message’,” said Pauley, quoting Campbell v Acuff-Rose Music, a US Supreme Court judgment.

Christine Lepera, partner at Mitchell Silberberg & Knupp and Drake’s representative, said: "We are very pleased with the court's decision which accurately validates the defendants' fair use."

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