“Pound Cake” Sampling Is Fair Use According to the Second Circuit

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Drake prevails again – this time at the Second Circuit. On February 3, 2020, the Court of Appeals for the Second Circuit upheld the district court’s grant of summary judgment in favor of Drake, finding that his use of a sample from “Jimmy Smith Rap” in his song “Pound Cake/Paris Morton Music 2” (“Pound Cake”) constituted fair use because it was transformative.

Here is a short recap: In April 2014, the estate of Jimmy Smith sued Drake and his record labels alleging they had infringed the copyright in the musical composition “Jimmy Smith Rap” (note that Drake obtained a license to use the sound recording). Three years later, in 2017, U.S. District Court Judge William H. Pauley held that the use of the copied portions of “Jimmy Smith Rap” was fair use because Drake’s objective was “sharply different from the [original artist’s goals] in creating it.” Plaintiff appealed that decision in December 2018.

In its decision upholding the district court’s grant of summary judgment to Defendants, the Second Circuit considered a list of four nonexclusive factors to decide whether the work constituted fair use. These included: (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; and (4) the effect of the use upon the potential market for or value of the copyrighted work. TCA Television Corp. v. McCollum, 839 F.3d 168, 179 (2d Cir. 2016).

In reaching its decision, the Court was persuaded by the distinctive messages in each song:

“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.”

Where the “Jimmy Smith Rap” “espouses” jazz-elitism, “Pound Cake” criticizes it, the Court held. Because of the differing messages posed in each song, Drake used the copyrighted work for “a purpose, or imbue[d] it with a character, different from that for which it was created.” Thus, the first factor weighed in favor of fair use, the Court explained. TCA, 839 F.3d at 180.

Because the Court found that the work was transformative, it held that the second factor, the nature of the copyrighted work, was of “limited usefulness.” Additionally while “Pound Cake” borrowed language from the “Jimmy Smith Rap,” “the amount used [was] reasonable” because it was “necessary to emphasize its own message: that the ultimate attribute of music is its authenticity, not the production process that created it.” Therefore, the Court also found that the third factor supported a finding a fair use. The fourth and final factor also weighed in favor of fair use because there was no evidence that “‘Pound Cake’ usurps demand for ‘Jimmy Smith Rap’ or otherwise cause [sic] a negative market effect.” In fact, the Court noted that the works appeal to completely different audiences.

This is a big win for Drake, as courts have recently been finding against defendants in music copyright infringement cases (i.e. Robin Thicke and Pharrell Williams and Katy Perry). Lawyers are already using Drake’s win to support their own cases. On February 5, Amazon, Netflix and Apple argued that a copyright lawsuit over its use of a children’s song in a 2017 burlesque film should be thrown out, citing to the recent Drake ruling.

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