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Started from the Bottom

November 6, 2017

STARTED FROM THE BOTTOM: WHAT DRAKE’S FAIR USE WIN MEANS TO THE FUTURE OF MUSIC SAMPLING

By: Veena Tripathi, Volume 102 Staff Member

True, just like it’s probably easier to snap a picture with that camera [looks at camera] than it is to actually paint a picture. But what the photographer is to the painter is what the modern DJ and computer musician is to the instrumentalist.

– Shock G, Digital Underground[1]

In May 2017, the Estate of Jimmy Smith sued Aubrey Drake Graham (“Drake”) for the unlicensed use of the spoken-word piece “Jimmy Smith Rap” (“JSR”).[2] Although Drake’s team licensed part of JSR, the Estate of Jimmy Smith sued Drake based on the unlicensed use of the composition[3] of the sample. Drake asserted a fair use defense and won on summary judgment.

This decision is notable because fair use is considered a risky defense in copyright infringement cases.[4] Because of limited use of the defense and strict anti-sample case law, it is unlikely for an artist to succeed on this defense, unless the work meets one of the exceptions outlined in § 107 of the Copyright Act.[5] As a result, Drake’s victory is unique because it did not fit within one of the neatly created exceptions, but rather grappled with the law on a new level. Commentators have called this victory noteworthy and industry-shattering.[6] Although this decision faces several limitations, the opinion presents a unique perspective on how sampling should be viewed.

This Post will discuss the issues surrounding Drake’s victory in this copyright case. Part I will discuss the history of fair use in copyright law. Part II will give an overview of the case. Part III will discuss the implications of the ruling and whether it signals copyright law is headed in the right direction.

I. LEGEND: THE HISTORY OF FAIR USE

A. Copyright Act

The 1976 Copyright Act extends copyright protection to “original works of authorship fixed in any tangible medium of expression, . . . [which] can be perceived, reproduced, or otherwise communicated.”[7] There are two distinct components of music that are protected under the 1976 Copyright act: (1) musical works and (2) sound recordings.[8] Musical works encompass both music and lyrics and become copyrightable material once they are “fixed in a tangible medium of expression,”[9] such as being written down.[10] A sound recording is inherently fixed because it is recorded.[11]

When an artist intends to use a piece of another artist’s music, known as a sample, the artist must “clear” by obtaining two licenses: one for the musical composition and another for a sound recording.[12] If an artist does not obtain these licenses, she may be subject to infringement.

To establish infringement, three elements must be proven: (1) ownership of a valid copyright, (2) copying of the constituent elements of the works that are original, and (3) improper appropriation of copyrighted work.[13] Ownership is most commonly established through a certificate from the Copyright Office. Copying is proven by an acknowledgment, usually by the infringer herself, that she copied the material or by circumstantial evidence, such as a similarity in tempo. The final element the plaintiff must demonstrate is that the work was improperly appropriated.[14] This is a factual investigation determined by a lay person.[15] At this stage, juries are asked to determine whether there is “substantial similarity.” However, courts have not identified a single test to use to determine if this standard is met.[16] Although the standard is vague, if an artist has infringed, she may owe royalties, rights, and may no longer be able to share her work.[17] Given the harsh penalties, artists have turned to various means to defend their creative works.

B. Fair Use

The fair use doctrine (fair use) is one possible defense to copyright infringement. It permits unauthorized copying from a copyrighted work when the copying does not “substantially impair” the value of the original work and advances the public benefit.[18] Congress codified the fair use doctrine in the Copyright Act of 1976. Section 107 of the Copyright Act provides that fair use of the work can be for purposes including, but not limited to, “criticism, comment, news reporting, teaching . . . scholarship or research . . . .”[19] The act delineates four prongs by which fair use can be evaluated by a judge:

(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.[20]

Courts are asked to weigh all four factors together in “light of the purposes of copyright” to determine whether fair use exists.[21] For example, if the work is commercial rather than non-profit, the work is less likely to be classified as fair use.[22] Another test the courts have considered is whether the work is transformative. In Campbell, the Supreme Court explained that a transformative work “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.”[23] The second factor the court considers is whether the work is “closer to the core of the intended copyright protection than others.”[24] For example, a factual work is less likely to receive expansive copyright protection as compared to a fictional work.[25] The third factor centers around whether the user of the copyrighted material took a “reasonable amount in relation to the purpose of copying.”[26] The fourth factor requires courts to consider the harm the alleged infringer would have on the infringer and its “derivative works.”[27] For example, a parody is unlikely to affect the market for an original work, because it will not act as a substitute for the original.[28] Given the factual analysis for these decisions, courts have been encouraged to apply these factors on a case-by-case basis.

II. THE LANGUAGE: DRAKE AND JIMMY SMITH RAP

A. Background of the Case

In May 2017, the Estate of Jimmy Smith sued Drake’s record label, Cash Money Records, for copyright infringement. The suit stemmed from Drake’s use of a spoken-word sample from JSR[29] on Drake’s album, Nothing Was the Same. The last song on the album is “Pound Cake/Paris Morton Music 2” (Pound Cake). The opening to Pound Cake samples “about 35 seconds of JSR.”[30] While some words from JSR were rearranged or deleted, no new words were added.[31]

Defendants obtained a license for the JSR recording, but not the respective composition. If an artist intends to sample, it is customary to obtain a license for both the sound recording and the composition.[32] The JSR composition copyright was not registered with the U.S. Copyright Office prior to the Drake’s album release.[33] While the composition was both written down and recorded at the time of alleged infringement, the copyright application for the composition was filed after the album was released. After JSR filed an initial compliant for copyright infringement, Defendants asserted a fair use defense. Both parties moved for summary judgment on both issues.[34]

The Southern District of New York had two key issues on summary judgment: (1) whether Drake’s song infringed on Jimmy Smith’s copyright, and (2) whether Drake’s use of JSR was a valid exercise of the fair use doctrine. The court determined that the ownership of the composition copyright was a genuine issue of material fact and could not be resolved upon summary judgment.[35] The Court also held that Drake’s use of the sample was valid under the fair use doctrine, thereby closing the case.[36]

B. Judge Pauley Declines to Apply Summary Judgment on Copyright Infringement Issue

Judge Pauley, who wrote the opinion in Estate of Smith v. Cash Money Records, did not rule in favor of either party on summary judgment as it related to the copyright infringement issue.[37] In denying both parties a judgment at this issue, Judge Pauley stated that there were genuine issues of material fact as to whether the Estate of Jimmy Smith actually owned the copyright for the composition because the composition copyright was not registered at the time of the alleged infringement.[38] Further, Judge Pauley declined to rule on the issue of substantial similarity, citing the variety of tests that the court could apply.[39] Finding no direction from these tests, he concluded by stating that “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges on the worth of [art], outside of the narrowest and most obviously limits.”[40] Accordingly, Judge Pauley declined to apply summary judgment on the elements of infringement.

C. Success Under the Fair Use Doctrine

In evaluating the viability of Drake’s fair use defense, Judge Pauley focused primarily on whether the work was transformative. Pauley stated that the line in JSR about jazz is an “unequivocal statement on the primacy of jazz over all other forms of music.”[41] Judge Pauley distinguished Drake’s use, which he argues, is focused on “real music” rather than jazz.[42] Due to this, Judge Pauley concluded that the “purposes” in using the original work is “sharply different from the [original artist’s goals] in creating it.”[43] Pauley makes a further comparison between Drake’s use of spoken-word to the defendant in Blanch v. Koons.[44] In Blanch, the court found that the defendant’s use of a small advertisement in a large mixed-media artwork was a transformative use, because the copyrighted work was utilized as a “raw material . . . in furtherance of a creative or communicative objective.”[45] As a result, Judge Pauley concluded this factor weighed in favor of a finding for fair use.

Judge Pauley decided that the second factor, the nature of the work, weighs against a finding of fair use because JSR is a work of creative expression, which is entitled to copyright protection.[46] However, Pauley concludes that this has “limited usefulness” because Judge Pauley has already determined the creative work of art is being used for a “transformative purpose.”[47]

Judge Pauley continued the analysis by arguing the third factor, the amount used, weighed in favor of a finding of fair use. Pauley surmised the amount taken by Drake was “reasonable in proportion to the needs of the intended transformative use.”[48] Judge Pauley established that Drake’s message is intended to apply to the shared experiences of many artists, but only “real music” will weather the storm of time.[49]

Judge Pauley determined that the fourth factor, the impact on the market, was in favor of fair use because the product target a substantially different market, hip-hop instead of jazz.[50] Even more convincing to the court on this issue is that the Plaintiffs did not use or demonstrate an intent to use the derivative of the copyrighted work until Defendants used the recording on the album.[51]

Based on the four factors, Judge Pauley decided the balance leaned in favor of the fair use defense and granted the Defendant’s motion for summary judgment.[52] As a result of this finding, JSR’s claim was barred by the doctrine of fair use and the Plaintiff’s motion for summary judgment was denied.[53]

III. THANK ME LATER: IMPLICATIONS FOR FAIR USE DEFENSES

Drake’s win comes at an interesting time in the music industry. With the rise of electronic dance music[54] and the increasing popularity of hip-hop,[55] sampling has become even more prominent.[56] Historically, courts have not been able to keep up with the changes in music. The legal system has an innate desire to protect original creative works. Similar to patent law, copyright law bases its protections on the utilitarian goal of rewarding protective rights to those who contribute.[57] Although copyright laws were intended to encourage creativity, its rules around sampling have accomplished the opposite.

Judge Pauley’s ruling in this case marks a shift in the legal perspective on how art is created. The decision in Drake’s case redefines what it takes to make a work “transformative.” Historically, protected hip-hop sampling has been limited to what may constitute a “parody.”[58] Judge Pauley’s decision is a watershed outcome because Drake’s work was not intended as a parody, but still received protection because it was transformative under the fair use doctrine. If Judge Pauley’s analytical process—looking at the meaning of the words in the sampled portion—is adopted, it is likely that sampling artists and producers will have a greater chance of success under the fair use regime.

But however impactful this decision may be, it may not be as far reaching as critics suggest. The primary limitation of this holding is that it is focused on the composition, rather than the sound recording. Most copyright suits surround the sound recording, which was not at issue here. Additionally, Plaintiffs did not register the composition copyright until after the album was released.[59] In most scenarios, both the recording and the composition would be copyrighted material before a lawsuit was initiated. Defendants here had actually secured a license for the portion that was registered at the copyright office- demonstrating their due diligence. This is not equivalent to the process of the average DJ or social media artist who intends to sample, who would likely not consult with legal counsel before doing so. Further, the missing license seemed to weigh in favor of granting the fair use defense and significantly compromised the strength of the copyright infringement argument brought by the plaintiffs.

Whatever the limitations are, this decision signals a necessary change in the music industry. The concept that no work is “truly original” is not new to the courts, but the current refusal to accept a more flexible standard has drastic consequences.[60] Transforming this area of the law, both to cater to artists who are creating new content and to protect artists that have created in the past, will not only spur a simpler copyright framework, but will also increase and broaden creative endeavors.

  1. Shock G is an American musician and rapper known as the lead vocalist for hip-hop group Digital Underground. He had produced for artists such as Tupac Shakur and Dr. Dre. Copyright Criminals (PBS television broadcast Sept. 19, 2009). ↑
  2. Jimmy Smith is a prominent jazz organist. He listed the track “Jimmy Smith Rap,” which is a spoken word narrative about the album’s recording session, as the last track on the album. ↑
  3. See Bridgeport Music, Inc., et al. v. Still N the Water Publishing, 327 F.3d 472, 475 n. 3 (6th Cir. 2003) (“Sound recordings and their underlying musical compositions are separate works with their own distinct copyrights.”). ↑
  4. Alex Kozinski & Christopher M. Newman, What’s So Fair About Fair Use? The 1999 Donald C. Brace Memorial Lecture, 64 J. Copyright Soc’y U.S. 513, 515 (1999) (“[W]hen it comes to derivative works, fair-use doctrine is a red herring and we should just dump it.”). ↑
  5. Id.; 17 U.S.C. § 107. ↑
  6. See Amanda G. Ciccatelli, The Impact of Drake’s Fair Use Copyright Victory on Music Copyright Infringement, IPWatchdog.com (June 17, 2017) http://www.ipwatchdog.com/2017/06/17/ drakes-fair-use-copyright-victory-music-copyright-infringement/id=84504/. ↑
  7. 17 U.S.C. § 102(a) (1998). ↑
  8. Id. §§ 102(a)(2), 102(a)(7). ↑
  9. 17 U.S.C. § 102(a). ↑
  10. See 5 Nimmer on Copyright § 2401 (1998); see also Brett I. Kaplicer, Rap Music and De Minimis Copying: Applying the Ringgold and Sandova Approach to Digital Samples, 18 Cardozo Arts & Ent. L.J. 227 (2000) (outlining the basics of digital music sampling in hip-hop music). ↑
  11. 17 U.S.C. § 101 (1998). ↑
  12. Robert G. Sugarman & Joseph P. Salvo, Whose Rights? Sampling Gives Law A New Mix, Nat’l L.J., Nov. 11, 1991, at 21 (“[T]o clear a sample, a record company must obtain a license from the owner of the underlying sound recording, typically owned by another record label, and a license from the owner of the underlying song, or composition, typically a publisher.”); see also Sampling, Webster’s Dictionary (Online ed. 2017) https://www.merriam-webster.com/dictionary/sample (A sample is an “excerpt from a recording (such as a popular song by another popular performer) that is used in a musical composition, recording or performance”). ↑
  13.  Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). ↑
  14. Id. ↑
  15. Id. ↑
  16. See Stephanie J. Jones, Music Copyright in Theory and Practice: An Improved Approach for Determining Substantial Similarity, 31 Duq. L. Rev. 277 (1993). ↑
  17. 17 U.S.C §§ 502–513 (1976) (statutes discussing possible penalties for copyright infringement). ↑
  18. 17 U.S.C. 107 (1976). ↑
  19. Id. See also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 576–77 (1994). ↑
  20. 17 U.S.C. § 107 (1976) (listing the limitations on exclusive rights under fair use). ↑
  21. Campbell, 510 U.S. at 579 (1994). ↑
  22. Id. ↑
  23. Id. ↑
  24. Id. at 586. See 17 U.S.C. § 107(2) ↑
  25. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991) (“[T]he copyright in a factual compilation is thin.”). ↑
  26. Campbell, 510 U.S. at 586; see Sony Corp. of Am., et al., v. Universal City Studios, 464 U.S. 417, 450 (reproduction of entire work “does not have its ordinary effect of militating against a finding of fair use” as to home videotaping of television programs); Harper & Row Publishers v. Nation Enter.s, 471 U.S. 539, 564 (1985) (“[E]ven substantial quotations might qualify as fair use in a review of a published work or a news account of a speech” but not in a scoop of a soon-to-be-published memoir).  ↑
  27. Campbell, 510 U.S. at 590. ↑
  28. Id. ↑
  29. Jimmy Smith, Jimmy Smith Rap, on Off the Top (Elektra/Musician Records 1982). The lyrics to JSR are:Good God Almighty, like back in the old daysYou know, years ago they had the A & R men to tell you what to play, how to play it and you know whether it’s disco rock, but we just told Bruce that we want a straight edge jazz so we got the fellas together Grady Tate, Ron Carter, George Benson, Stanley Turrentine.Stanley was coming off a cool jazz festival, Ron was coming off a cool jazz festival. And we just went in the studio and we did it.We had the champagne in the studio, of course, you know, compliments of the company and we just laid back and did it.Also, Grady Tate’s wife brought us down some home cooked chicken and we just laid back and we was chomping on chicken and having a ball.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.We may not do this sort of recording again, I may not get with the fellas again. George, Ron, Grady Tate, Stanley Turrentine.So we hope you enjoy listening to this album half as much as we enjoyed playing it for you. Because we had a ball. Id. ↑
  30. Estate of Smith v. Cash Money Records, Inc., No. 14CV2703, 2017 WL 2333770 at *2 (S.D.N.Y. May 30, 2017). ↑
  31. Aubrey “Drake” Graham, Pound Cake/Paris Morton Music 2, on Nothing Was the Same (Cash Money Records, Republic Records 2013). The sampled portion of JSR in Pound Cake is:Good God Almighty, like back in the old days.You know, years ago they had the A & R men to tell you what to play, how to play it and you know whether it’s disco rock, but we just went in the studio and we did it.We had champagne in the studio, of course, you know, compliments of the company, and we just laid back and did it.So we hope you enjoy listening to this album half as much as we enjoyed playing it for you. Because we had a ball.Only real music is gonna last, all that other bullshit is here today and gone tomorrow. Id. ↑
  32. Supra note 8 and accompanying text. ↑
  33. Estate of Smith v. Cash Money Records, Inc., No. 14CV2703, 2017 WL 2333770 at *2 (S.D.N.Y. May 30, 2017). ↑
  34. Id. at *4. ↑
  35. Id. ↑
  36. Id. at *10. ↑
  37. Id. ↑
  38. Id. at *2. ↑
  39. Id. at *5. ↑
  40. Id. at *7 (quoting Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903)). ↑
  41. Id. *8 (“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”). ↑
  42. Id. ↑
  43. Id. (citing Blanch v. Koons, 467 F.3d 244, 252 (2nd Cir. 2006)). ↑
  44. Blanch v. Koons, 467 F.3d 244, 252 (2d Cir. 2006). ↑
  45. Id. at 253 (citing Castle Rock Entn’t., Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 142 (2nd Cir. 1998)). ↑
  46. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991) (“Others may copy the underlying facts from the publication, but not the precise words used to present them.”). ↑
  47. Estate of Smith v. Cash Money Records, Inc., No. 14CV2703, 2017 WL 2333770 at *9 (S.D.N.Y. May 30, 2017) (quoting Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 612 (2d Cir. 2006)). ↑
  48. Id. at *10. ↑
  49. Id. Judge Pauley writes that the shared experiences include the “help of A & R experts or the stimulating effects of champagne.” Id. ↑
  50. Id. ↑
  51. Id. ↑
  52. Id. ↑
  53. Id. ↑
  54. Danny Feinstein and Colin Ramsay, The Rise of EDM, Music Bus. J. (Oct. 2012) http://www.thembj.org/2012/10/the-rise-of-edm/. ↑
  55. Stephen Dalton, The Last Decade in Music, The Nat’l (Dec. 29, 2009), https://www.thenational.ae/arts-culture/the-last-decade-in-music-1.584526. ↑
  56. Glenn Jackson, Modern Approaches: Sampling, Red Bull Music Acad. (Jul 26, 2016), http://daily.redbullmusicacademy.com/2016/07/modern-approaches-sampling. ↑
  57. Sara K. Stadler, Forging a Truly Utilitarian Copyright, 91 Iowa L. Rev. 609 (2006). ↑
  58. See generally Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (highlighting the role that parody plays in fair use and its unique circumstance and ability to sample). ↑
  59. Estate of Smith v. Cash Money Records, Inc., No. 14CV2703, 2017 WL 2333770 at *2 (S.D.N.Y. May 30, 2017). ↑
  60. “In truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.” Emerson v. Davies et al., 8 F.Cas. 615, 619 (No. 4,436) (Cir. Ct. D. Mass. 1845). ↑
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