Something big happened last week in the world of music and copyright: a case about a music sample was won on fair use grounds. This basically never happens for a variety of problematic historical reasons. And yet, it did. The hip hop artist Drake was found not to be infringing on a Jimmy Smith composition due to fair use. And that’s a big deal — though the case also highlights the ongoing madness of today’s copyright licensing laws (even beyond sampling). But we’ll get there eventually. Let’s start with the issue of copyright and sampling.
For years, we’ve talked about the pure madness of copyright law and music sampling. If you’ve never seen it, the documentary Copyright Criminals, is worth your time — as it demonstrates how a bunch of stuffed shirt lawyers and clueless judges basically killed off an entire art form by demanding money for every tiny sample, no matter how much musicians transformed that sample. Album’s like De La Soul’s "3 Feet High and Rising" or the Beastie Boy’s "Paul’s Boutique" simply could not be made today — which is just crazy. And the absolute worst court ruling regarding sampling was Grand Upright Music v. Warner Bros. from 1991 in which Gilbert O’Sullivan sued Biz Markie for making what was effectively a hip hop parody of his one big hit. The judge in that case — Kevin Duffy — never seemed to have any grasp of music, art, culture or even copyright law. His ruling in that case starts off with a total confusion about the difference between "stealing" and "copyright infringement."
"Thou shalt not steal." has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed. Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country.
That’s… a bad way to open things. And, that case changed sampling. The other big case in this genre of bad sampling rulings is Bridgeport Music v. Dimension Films in which Judge Ralph Guy, bizarrely summarized things as follows:
Get a license or do not sample. We do not see this as stifling creativity in any significant way.
Notice the lack of any consideration of fair use or transformative works or anything of that nature.
And, tragically, few cases have really challenged this view since. While lots of lawsuits are filed over sampling, most settle. It’s rare for anyone to make a fair use argument. To some extent, it’s really seemed like the record labels themselves haven’t wanted any of these cases to go to trial, because they’d hate to have a ruling that says sampling is fair use. Over the past few years, we’ve seen a few cases pop up where we hoped we’d get a court to recognize fair use in sampling — and yet they all seem to settle before the cases get that far. Getting such a judgment on the books would be a big, big deal and might (once again) revolutionize culture and unleash tremendous creativity.
And so now we have the Drake case, which is, undoubtedly, a good ruling. But it’s not clear it’s going to make as big a difference as some might hope. The details here are… rather specific. Drake’s song Pound Cake / Paris Morton Music 2 opens with a slightly altered, but clear "sample" of famed jazz artist Jimmy Smith’s Jimmy Smith Rap. You might think that the Jimmy Smith Rap is a rap song, but it’s just Jimmy Smith talking (it appears extemporaneously) about the fun he and some others had making the album Off the Top. But the recording got included on the album as a separate track. It’s not a song. It’s just Jimmy Smith talking. The Drake song uses a large chunk of the Jimmy Smith Rap unchanged… but does make a few small edits, including changing Smith from saying "Jazz is the only real music that’s gonna last. All the other bullshit is here today and gone tomorrow" to just saying "Only real music’s gonna last. All that other bullshit is here today and gone tomorrow." Apparently the Jimmy Smith estate wasn’t too happy with the changed meaning.
But here’s the oddity: Drake’s label licensed that track. So everything should be fine, right? Wrong. You forgot: music licensing is a swampy mess of insanity and patched together weirdness. As we’ve discussed elsewhere, when using a song, there are multiple different licenses you might need to get. You have to do one thing to license the sound recording, but something else entirely to license the "composition." The theory there is that one license pays the musicians and another pays the songwriters (though, in reality, it’s often middlemen who get the money). Here, it seems that Drake’s label didn’t license the "composition" to pay the "songwriter." And your first reaction might damn well be "what songwriter? there’s no damn song!" And you’d be right. Hell, even Jimmy Smith never registered the copyright as a composition. It was only his estate that registered the copyright 31 years after the not-really-a-song was released and only after they heard the Drake song and decided they didn’t like it at all.
So, then, after registering the copyright on the composition (and even though the sound recording was properly licensed), the Jimmy Smith Estate sued Drake. And it’s this that’s found to be fair use. The judge, William Pauley, goes through the four factors. The first one, discussing whether or not the work is transformative may be the most interesting. The judge looks at a few different ways that Drake’s lawyers argued the use was transformative — and actually rejects two of the three arguments. He’s not impressed by the argument that because Drake doesn’t reference Jimmy Smith’s album, he’s using the words to refer to the process of making his own album (which is… a very weak argument). Similarly, he doesn’t buy the fact that the addition of some quiet background music and general shifting of the words around is transformative. That… seems like a valid fair use analysis.
But the argument Judge Pauley finds convincing is interesting. He accepts the idea that by changing the meaning of the words, by cutting out the "jazz is the" from the "only real music that’s gonna last," Drake may have created a transformative work:
Defendants’ first argument, on the other hand, strikes on a compelling reason to
find this use transformative. There can be no reasonable dispute that the key phrase of JSR—
“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.”—is an unequivocal statement on the primacy of
jazz over all other forms of popular music. Defendants’ use of JSR, by contrast, transforms
Jimmy Smith’s brazen dismissal of all non-jazz music into a statement that “real music,” with no
qualifiers, is “the only thing that’s gonna last.” Thus, Defendants’ “purposes in using [the
original work] are sharply different from [the original artist’s] goals in creating it.” Blanch v.
Koons, 467 F.3d 244, 252 (2d Cir. 2006). 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.”
I’ll admit I’m surprised (pleasantly so…) by this part of the ruling. If followed by other courts (and this is a non-precedential district court ruling, so don’t get too excited…) that alone could be pretty big. Though, again, it’s focused on changing the meaning of the composition and not the music… so not that useful for other music sampling cases.
As for the other factors, the judge argues that the second factor (the nature of the work) weighs against fair use. I’d actually argue that this one should have gone the other way, especially seeing as the "composition" wasn’t actually a "composition" but just someone talking about his experience… but, that’s not what happened here. On the third factor, on the amount used — again, the court surprises me. Many courts tend to just look at the overall amount used and if it’s a lot they say "no fair use" — with a few importance exceptions. And, Drake used most of the Jimmy Smith Rap, even if it’s rearranged. But relying on the important ruling in the Google Books case, Judge Pauley notes that the question here is whether or not the amount of copying was "reasonable in relation to the purpose of the copying" rather than at an absolute level. And here, it weighs towards fair use:
Here, the Court finds the amount taken by Defendants to be reasonable in
proportion to the needs of the intended transformative use. Far from being extraneous to Pound
Cake’s statement on the importance of “real” music, Defendants’ use of the lines describing the
recording of Off the Top serve to drive the point home. The full extent of the commentary is, in
this Court’s view, that many musicians make records in similar ways (e.g. with the help of A&R
experts or the stimulating effects of champagne), but that only “real” music—regardless of
creative process or genre—will stand the test of time. Accordingly, this factor favors a finding
of fair use.
Finally, on factor four — the impact on the market — the court again finds in favor of fair use:
There is no evidence in the record to suggest that Pound Cake usurps any
potential market for JSR or its derivatives. JSR, a spoken-word criticism of non-jazz music at
the end of an improvisational jazz album, targets a sharply different primary market than Pound
Cake, a hip-hop track. Further, Plaintiffs never attempted to establish a market for licensed
derivative uses of the JSR composition copyright until Defendants used the recording on the
Album. See Campbell, 510 U.S. at 592 (“The market for potential derivative uses includes only
those that the creators of original works would in general develop or license others to develop.”).
These considerations, coupled with the finding that Defendants’ use is highly transformative,
forestalls the conclusion that Defendants took such “sufficiently significant portions of the
original as to make available a significantly competing substitute.” Authors Guild, 804 F.3d at
223. Thus, the fourth factor favors the Defendants.
That seems pretty straightforward and correct.
Thus, with three of the four factors — including the big first one — pushing towards fair use, the use is declared to be fair, and thus not infringing.
I wouldn’t be surprised to see the case appealed — but the 2nd Circuit Appeals court has a history of being pretty good on fair use, so hopefully… it would hold up. Still, given the specifics of this case, and mostly the fact that it’s about the composition, rather than the sound recording, I’m not sure that any ruling here would have that big an impact on sampling. We still need a better sampling case to hit the courts where fair use might be a useful tool.
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Drake Winning Sampling Case Over Fair Use Is Big News… But Still Demonstrates The Madness Of Music Licensing