By: Shantell Jiggetts
Intern from Villanova University Charles Widger School of Law
Last month, Rapper Drake and his record label, Cash Money Records, Inc., received a favorable decision in a copyright infringement suit filed against them in 2014 by the estate of deceased jazz musician, Jimmy Smith. The suit focused on the sampling of Smith’s “Jimmy Smith Rap” in Drake’s 2013 song “Pound Cake/Paris Morton Music 2.” Although Drake did delete and rearrange many of the words used in “Jimmy Smith Rap,” he still sampled about 35 seconds of the song. Fortunately for Drake and his label, the judge ruled that Drake’s inclusion of portions of “Jimmy Smith Rap” did not infringe Smith’s copyright.
Overview of Copyright Law and Music
Musical creations are a type of work protected under copyright law meaning, once a work is created, the author of the work has the exclusive right to reproduce, distribute, perform, publicly display, broadcast, and create derivate works. Musical creations are unique in a sense that two separate copyrights can be obtained for such works – a copyright for the musical composition and a copyright for the sound recording of the musical composition. To put it simpler, an author can obtain a copyright when he writes the song to a specific melody and another when that lyric/melody combination is recorded.
As mentioned earlier, once the work is created the author has certain exclusive rights to the work. However, an author can authorize someone else to use his exclusive rights. In music (and other realms of the creative world), these authorizations to use of an author’s exclusive rights are usually in the form of a license. An author can give a license to use the musical composition and/or a license to use the sound recording.
Did Drake have a license to use Smith’s work?
Prior to sampling “Jimmy Smith Rap,” Drake and Cash Money Records did attempt to obtain (and thought they succeeded) all of the necessary licenses through use of a music licensing company.  The licensing company did obtain a license for use of the sound recording, but failed to obtain a license for the musical composition (which was likely the result of an oversight since the musical composition was not registered in the U.S. Copyright Office or any performing rights organizations). Things got more confusing for Drake and his label when they received the license for Drake’s use of the sound recording and it granted use of “all requisite contents and permissions of … the copyright owners of the musical composition.” (Language that would make it easy to assume a license was granted for both the sound recording and the musical composition.)
It was not until Drake received a cease and desist letter from Smith’s estate, two months after “Pound Cake” was released, that he and his label learned they had not obtained the necessary license. Smith’s estate subsequently filed a copyright infringement case against him.
If Drake did not have a license, then how did he win the case?
A license is not the only way to use an author’s exclusive rights to a work. Courts have long recognized a defense to claims of copyright infringement. This defense is known as Fair Use. The fair use of a copyrighted work is permitted if it is “for purposes such as criticism, comment, news reporting, teaching … scholarship, or research.” 
When courts are asked to determine whether use of a work is fair use, they consider and weigh the following factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use upon the existing and potential market of the original work.
Purpose and Character of Use
Determining the purpose and character of the use is often considered to be one of the most important factors for a determination of fair use. Essentially, courts are trying to determine whether the new work was transformative in that it added “something new” to the old work so that it has “a further purpose or different character [and] alter[s] the [old work] with new expression, meaning or message.”  A finding of transformative use usually weighs in favor of a finding of fair use.
Fortunately for Drake, the court did find his use of “Jimmy Smith Rap” was transformative. In the court’s opinion, Drake’s purpose was sharply different and he altered the original message of the song. Drake’s changes to the lyrics of the original song, made the words applicable to all music not just jazz. (“Only real music is gonna last, all that other [expletive] is here today and gone tomorrow” as opposed to Smith’s version, “Jazz is the only real music that’s gonna last. All that other [expletive] is here today and gone tomorrow. But jazz was, is and always will be.”) Consequently, this factor weighed in Drake’s favor for a finding of fair use.
Nature of the Copyrighted Work
In an analysis of the nature of the copyrighted work, courts consider whether the original work is fiction or non-fiction and whether the work was published or unpublished. If the original work is fiction it usually contains more creative expression so the court is less likely to find fair use. If a work is unpublished the court is less likely to find fair use. In this case, the court found that “Jimmy Smith Rap” was fiction and published; therefore, it was a work of creative expression. Consequently, this factor weighed against Drake and against a finding of fair use.
Amount and Substantiality of the Portion Used
Under this prong, a finding of fair use is more likely when small amounts or less important passages of the original work are used. Courts are trying to determine whether the new work took more than was necessary to achieve the new purpose. In this case, the court found that the amount of copying by Drake was reasonable in proportion to his new purpose. Thus, this factor weighed in favor of a finding of fair use.
Effect on the Market of the Copyrighted Work
The final factor courts consider (and the most critical) is whether the new work usurps the market for the original work. Essentially, courts want to determine whether the new work will likely deprive the author of the original work of any potential earnings because consumers are more likely to buy the new work in preference to the original. The court did not find any evidence that “Pound Cake” usurped the market for “Jimmy Smith Rap.” The court noted that the songs target different markets (Smith’s targeted the jazz community and Drake’s the hip-hop community). Therefore, this factor weighed in favor of a finding of fair use.
Needless to say, after weighing the factors considered, the court found that Drake’s sampling of “Jimmy Smith Rap” constituted fair use. As a result, the court ruled in favor of Drake and Cash Money Records, Inc. holding that Drake did not infringe on Smith’s copyright.
To listen to a comparison of both songs, please click here.
 Estate of Smith v. Cash Money Records, Inc., 2017 WL 2333770, at *10 (S.D.N.Y., 2017).
 17 U.S.C. § 106 (2002).
 Cash Money Records, Inc., 2017 WL 2333770, at *2.
 17 U.S.C. § 107 (2002).
 Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1166, 1171 (1994).
 Cash Money Records, Inc., 2017 WL 2333770, at *8.
 Id at 9.
 Id at 10.