The Second Circuit Holds that Drake’s Sampling of Another Artist is Fair Use

Takeaway 1: When seeking a music copyright clearance, get a license for the copyright in the recording but also get a license for the separate copyright in the underlying composition as well.

Takeaway 2: If you are sued for infringing the music or lyrics of another artist, get your case transferred to the Second Circuit. Move there if necessary.

The Second Circuit last week held that rap artist Drake’s sampling of nearly all of another artist’s work, entitled, “Jimmy Smith Rap” in Drake’s new rap song, “Pound Cake” constituted fair use.

According to the Second Circuit, the sampling was fair use because Drake’s use was transformative and because there was no evidence of an active market for Jimmy Smith Rap — even though Drake himself obtained a license for the copyright in the Jimmy Smith Rap recording but failed to obtain a license for the copyright in the underlying composition.

As for the transformative nature of the sampling, the Second Circuit held that the message of Jimmy Smith Rap, which comprises all of 50 seconds, was that jazz reigns supreme and that all other types of music will not last. By contrast, the Second Circuit continued, the lyrics of Drake’s Pound Cake, including removing the word “jazz” from the sample, constituted criticism of this “jazz-elitism” and sent a counter message that it is all real and authentic music that reigns supreme, regardless of genre. As a result, Drake had transformed the original by imbuing it with “a character, different from that for which the original was created.”

Case: Estate of James Smith v. Graham, Case No. 19-28 (2nd Cir., Feb. 3, 2020)