Drake Wins on Sampling Fair Use; Plaintiffs' Song Ownership Muddy

Proving Song Ownership

Both sides moved for summary judgment. The district court observed that to establish their infringement claim, the plaintiffs would need to prove that they owned the JSR song copyright and that the defendants had copied original elements of JSR. Southern District Judge William H. Pauley III found, however, that the evidence in the record did not resolve the question of JSR's ownership. While copyright registration normally constitutes prima facie evidence of copyright ownership, the court noted that the estate had registered the JSR song copyright 31 years after JSR was originally published and only in response to the defendants' sampling of JSR on Drake's album. Under the circumstances, Judge Pauley ruled that the plaintiffs' registration certificate was insufficient to establish ownership, that a genuine issue of material fact barred summary judgment for the plaintiffs on the ownership issue.

The district court considered a statement printed on Smith's Off the Top album cover announcing that the album was recorded with “no charts, music format or nothing — just playing what we felt — off the top of our heads.” The court found that this information spoke only to the process of recording Off the Top, not the authorship of the JSR song and that here, too, there was a dispute of material fact. The estate had offered the declaration of Raymond Janifer, who asserted that Smith did not write music on paper, but made up the words before performing and recording on tape. But the court discounted Janifer's assertion because Janifer did not witness Smith record JSR and his lack of firsthand knowledge made his testimony less probative. Janifer also claimed that, prior to the release of Off the Top, Jimmy Smith had told him, “I laid down a dynamite rap on them and I hope they don't cut it off the album.” As to Janifer's hearsay statement, the court observed that there was no indication that Smith was referring to JSR and not some other song that was, in fact, cut from the Off the Top album.

District Judge Pauley found the song listings on Off the Top were not helpful, as they listed the writers for each song except JSR. While the album's packaging contained a copyright notice identifying Smith's label Elektra/Asylum Records as copyright owner, the notice was a ©, which applies only to the visual content of the product. Because the lyrics were not displayed on the album jacket, the notice did not apply to the JSR composition. The plaintiffs also argued that the website discogs.com listed Jimmy Smith as the writer of JSR, but the court observed that discogs.com is a user-built database to which anyone can contribute, that there was no evidence that whoever entered this data had any personal knowledge of JSR's authorship.

After this, Judge Pauley discussed the legal standards for determining whether JSR and “Pound Cake” were substantially similar. The defendants contended the sampled portion of JSR was primarily a cliché that was not original enough to warrant copyright protection. The court cautioned against dissecting JSR and “Pound Cake” and comparing only the copyrightable elements, but otherwise declined to address the substantial similarity issue, remarking that a determination of whether the copied portions of JSR were entitled to copyright protection depended on “a subjective assessment better suited for a jury than a court.”

The Fair Use Defense

But the defendants had raised a fair use defense. Examining the purpose and character of the use of the sample, Judge Pauley found that by editing the recording from “Jazz is the only real music that's gonna last” to “Only real music is gonna last,” Drake transformed Jimmy Smith's dismissive comment into a statement on the staying power of “real music,” regardless of genre. Thus, the defendants' purpose in using Smith's rap were “sharply different” from Smith's goal in creating it.

Regarding the amount and substantiality of the portion of the JSR the defendants used, the plaintiffs argued using 35 seconds of the one-minute JSR track was unreasonable. But the court ruled that the defendants needed to use the “full extent of the commentary” to convey that many musicians make recordings in similar ways but that only “real music” — regardless of process or genre — will stand the test of time. In the district court's words, the defendants needed to use Smith's extended commentary “to drive the point home.”

Finally, Judge Pauley declared there was no evidence to suggest that Drake's “Pound Cake” usurped any potential market for JSR or any derivative works. JSR was a spoken-word criticism of non-jazz music at the end of a jazz album. It targeted a “sharply different primary market” than “Pound Cake,” a hip-hop track. Moreover, the Plaintiffs made no attempt to develop a market for licensed derivative uses of the JSR composition copyright until after the defendants used it on “Pound Cake.”

Based on its finding of fair use, the district court granted the defendants' summary judgment motion.

As for the court's rejection of the estate's copyright registration certificate, waiting to register a work until after an infringement occurs can lead a court to afford the registration certificate little weight for proving ownership. The court's struggle with the Off the Top album's failure to list the writer of JSR is also instructive. Publishers should provide labels with writer information for all tracks, even if, as in the case of an improvised solo rap, authorship may seem obvious.

***** Vincent Peppe is an attorney based in Nashville, TN, and a Music Business faculty member at Belmont University. He can be reached at [email protected].