Drake Wins “Pound Cake/Paris Morton Music 2” Sample Lawsuit
Drake gets another win.
According to a report by The Hollywood Reporter published on Monday (Feb. 3), the Second Circuit Court of Appeals agreed with Drizzy that he fairly used the 1982 spoken-word track, "Jimmy Smith Rap"—a recording by late Jazz musician, Jimmy Smith—for his Nothing Was the Same track, "Pound Cake/Paris Morton Music 2."
This is a big win for Drake and his legal team because it's rare for the "fair use" designation to be given to artists sampling for songs.
"'Pound Cake' does just that," the Second Circuit stated in its summary judgment order. "The message of the 'Jimmy Smith Rap' is one about the supremacy of jazz to the derogation of other types of music, which — unlike jazz — will not last. On the other hand, 'Pound Cake' sends a counter message — that it is not jazz music that reigns supreme, but rather all 'real music,' regardless of genre."
Lawyers for Jimmy Smith’s estate had no comment on the matter.
On Tuesday (May 30), Drake added another big W to his interminable winning streak when he won a lawsuit over the sample he used for his Nothing Was the Same cut, "Pound Cake/Paris Morton Music 2."
Drake won the case by being able to convince the judge he fairly used the 1982 spoken-word track, "Jimmy Smith Rap"—a recording by late Jazz musician, Jimmy Smith—and that there was no liability for copyright infringement. As The Hollywood Reporter notes, this is a notable accomplishment for Drizzy and his legal team because it's rare for the "fair use" designation to be given to artists sampling for songs. This was essentially made possible by U.S. District Court judge William H. Pauley III, who decided to consider Drizzy's intentions when analyzing the use of the sample.
According to facts from the case, Cash Money—the label Drizzy's signed to through Young Money—worked with a music licensing company to gain possession of all the licenses they needed. Among the records they reportedly gained a license for was "Jimmy Smith Rap." The problem was, getting it cleared didn't go as smoothly because the estate of Jimmy Smith claimed Smith wasn't a fan of hip-hop.
It turns out the original recording Drizzy used supports the estate's claim. In the original lyrics, Smith states, "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."
For the beginning of "Pound Cake/Paris Morton Music 2," the Toronto rapper altered the quote to say, "Only real music's gonna last. All that other bullshit is here today and gone tomorrow." See the difference?
Anyway, Judge Pauley ruled that Drizzy had altered the sample enough that it couldn't really be called a copy, ruling that "Pound Cake/Paris Morton Music 2" "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.'"
Ruling that Drizzy's purpose with the sample was "sharply different" from Smith's, Judge Pauley wrote, "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." Sounds legit.
The estate claimed Drizzy's fans wouldn't recognize Smith or his vocals, and so therefore wouldn't realize Drake had altered Smith's original statement. Judge Pauley claimed that fact didn't preclude Drizzy or others in similar situations from finding "transformative use" for the track, thus gaining a credible claim of "fair use."
Judge Pauley then evaluated the estate's claim that Drizzy had used too much of Smith's audio. They claim he should have just used the "only real music's going to last" bit. Judge Pauley disagreed.
"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 judge wrote. "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."
So there you have it. Complex legal jargon aside, Drizzy takes home another big W.
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