Drake’s recent copyright victory is noteworthy because rulings of fair use are rare in songwriting..
A few weeks ago, a New York federal judge ruled that Hip-Hop Artist Drake was protected by copyright’s fair use doctrine when he sampled a spoken-word jazz track on his 2013 song “Pound Cake,” saying the artist had transformed the purpose of the clip. Drake used 35 seconds of Jimmy Smith’s 1982 “Jimmy Smith Rap” without clearing the clip, but Judge William H. Pauley said Drake’s purpose in doing so was sharply different from the original artist’s goals in creating it.
Drake’s recent copyright victory is noteworthy because rulings of fair use are rare in songwriting. When it comes to documentaries and less abstract art forms, judges can figure out whether use of copyrighted material is transformative, however, in disputes over song sampling, parties have tended to wage fights over other issues like ownership records and whether the copying is sufficiently substantial.
Morgan Pietz, partner at Gerard Fox Law recently sat down with IPWatchdog to discuss Drake’s case and what it means to music copyright. In his role, Pietz primarily handles intellectual property and entertainment matters, business disputes, class actions, and related insurance issues.
“What is extremely unusual about this case is that the defendants got out of it relatively early on, at the summary judgment stage,” he explained. “The nature of the fair use defense is such that it turns on facts, so a defendant normally must take a fair use case all the way to trial, and take their chances with a jury, to get a determination that what they did is a fair use such that they should be absolved of liability.”
So, it is usually very risky to rely on fair use as a defense because you are normally going to have to spend hundreds of thousands or millions in legal fees to defend a case all the way through to trial. Also, you are at the mercy of the jury, and if you lose, you might end up paying millions in damages as well as perhaps the other side’s legal fees.
Pietz added, “Whenever clients come to me insisting that whatever it is they are doing is fair use, I usually tell them that you may well be right, but do you feel strongly enough about that to pay six or seven figures to find out?”
In Drake’s case, the judge focused intently on the way Drake rearranged some of the words. Jimmy Smith said in his rap that: “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.” Drake took that, cut out the reference to jazz altogether, spliced in the word “is”, and made the same recording say: “only real music [is] gonna last, all that other bullshit is here today and gone tomorrow.”
In the judge’s perspective, this small change totally changed the meaning such that the statement was being used for an entirely different purpose than the original, such that it was transformative and thus fair use, according to Pietz.
“Nobody really knows what changes the nature or purpose of a work or makes a use transformative. We now have this judge’s take on how these questions should be answered in this particular case,” he explained. “But a different judge, or a jury, for that matter, could have tried to answer them by focusing on totally different aspects of this situation.”
This court decision does not really focus on how Drake’s use here is being done for commercial gain, which is often seen as the key determinative factor for a fair use defense. One could argue that the purpose of Jimmy Smith’s rap was to talk about the longevity of music in an entertaining way and that Drake’s use of the clip, with only slight tweaks, was done for the exact same purpose as the original.
The four fair use factors that are spelled out in the statute make no mention of whether a work is transformative, according to Pietz.
“Whether or not a work is ‘transformative’ has kind of become a shorthand way for a court to say that what a defendant is doing seems different and good, so I think they should escape liability,” he said. “In my view, the four fair use factors, as well as the idea of a transformative use, are all concepts that are so incredibly vague and open to interpretation that grounding a defense on these concepts is always a risky bet.”
So, how exactly can artists who use song clips protect themselves from copyright infringement in the future?
If an artist is sampling music or spoken word from an older sound recording, then the artist needs to clear both the sound recording and the composition, according to Pietz. In this case, Drake’s people cleared and licensed the sound recording, however, they didn’t clear the composition – and they got sued.
“This case is the exception that proves the rule,” he said. “Defendants assert fair use all the time, in sampling cases especially. But it seems like it is only once in a blue moon that a defendant sticks in the fight long enough to actually succeed in getting rid of a case based on a fair use defense as happened here.”