On May 30th, 2017, the United States District Court for the Southern District of New York (the Court) granted the defendant’s motion for summary judgment in Estate of James Oscar Smith v Cash Money Records, Inc. In its decision, the Court found that the song "Pound Cake/Paris Morton Music 2", released in 2013 by Aubrey Drake Graham (Drake), fairly sampled the 1982 spoken-word recording of jazz musician James Oscar Smith (Jimmy Smith), entitled "Jimmy Smith Rap".

Fair use is an affirmative defense to copyright infringement under the Copyright Act. The fair use doctrine permits use of copyrighted works for the purposes of criticism, comment, news reporting, teaching, scholarship, or research. The Court considers four factors in determining whether the use of a copyrighted constitutes fair use:

  1. the purpose and character of the use;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work; and
  4. the effect of the use upon the potential market of the copyrighted work.

In this case, referring to the first factor, the Court found that Drake’s use of the original work was sufficiently transformative to constitute fair use. The Court was compelled by the defendant’s argument that Drake transformed Jimmy Smith’s brazen dismissal of all non-jazz music into a statement on the relevance and staying power of “real music”.  Specifically, Drake transformed the original lyrics, “[j]azz is the only real music that's gonna last”, to "[o]nly real music’s gonna last".  The Court found, therefore, that Drake’s purpose in using the original work is “sharply different” from Smith’s goals in creating it.

Upon weighing the fair use factors, the Court determined that Drake’s inclusion of the copied portion of Jimmy Smith Rap in Pound Cake/Paris Morton Music 2 was a fair use and did not infringe the plaintiff’s copyright.

Summary By: Anna Troshchynsky

E-TIPS® ISSUE

17 06 28

Disclaimer: This Newsletter is intended to provide readers with general information on legal developments in the areas of e-commerce, information technology and intellectual property. It is not intended to be a complete statement of the law, nor is it intended to provide legal advice. No person should act or rely upon the information contained in this newsletter without seeking legal advice.

E-TIPS is a registered trade-mark of Deeth Williams Wall LLP.