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Drake Wins on Sampling Fair Use; Plaintiffs' Song Ownership Muddy
In 1982, jazz organist Jimmy Smith released an album on Elektra/Asylum called Off The Top. The last track on the album was a spoken-word recording titled “Jimmy Smith Rap” (JSR). One of the lyrics proclaimed: “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.” The album label did not list a composer for JSR, nor was the composition copyright registered with the U.S. Copyright Office or a performing rights organization prior to the album's release. Jimmy Smith died in 2005.
In September 2013, Cash Money Records and Universal Republic Records released the album Nothing Was the Same by Drake. The last song on the album was “Pound Cake/Paris Morton Music 2″ (Pound Cake). “Pound Cake” sampled about 35 seconds of JSR and made some minor changes to Smith's recitation of the words. For example, “Pound Cake” altered Smith's statements about jazz to claim: “Only real music is gonna last, all that other bullshit is here today and gone tomorrow.” In producing the album, Cash Money and Universal Republic obtained a license for the JSR recording, but not for the JSR composition.
Stephen Hacker is the principal of Hebrew Hustle, a music publisher that represents songwriters for licensing their copyrights. Approximately one week before the release of Nothing Was the Same, Hacker reviewed an advance copy of the album credits. After noticing that Cash Money/Universal Republic had secured a license for the JSR recording but not the composition, Hacker contacted Raymond Janifer, Jimmy Smith's nephew and a co-manager of Smith's estate. The estate entered into a co-publishing agreement with Hebrew Hustle, assigning 50% of the copyright in the JSR composition to the publisher and granting the exclusive right to exploit the work. Hebrew Hustle registered the JSR composition with the U.S. Copyright Office. Two months after the album's release, the estate sent to the labels a cease and desist letter, which was the first time Cash Money and Universal Republic learned of a song copyright interest in JSR. The estate and Hebrew Hustle brought a copyright infringement action against the record labels, Drake and other defendants in the U.S. District Court for the Southern District of New York. Estate of Smith v. Cash Money Records, 14cv2703.
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