Pattishall IP Blog

June 14, 2017

Drake Copied Jimmy Smith’s Rap. But Court Says it’s not Copyright Infringement, it’s Transformative Fair Use.

Filed under: Copyright, Litigation — Tags: , , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 9:42 am

By Jason Koransky

Jimmy Smith is considered to have been one of the most influential and accomplished organists in the history of jazz. His soulful and swinging Hammond B-3 playing cemented the organ as a fixture in jazz, and laid the musical groundwork for generations of players to come. And while Smith, who died in 2005, was not known for his rapping, on the last track of his 1982 album Off The Top, he laid down the track “Jimmy Smith Rap,” which is a spoken word narrative about the album’s recording session. The “rap” goes as follows:

Good God Almighty, like back in the old days.

You know, years ago they had the A&R men to tell you what to play, how to play it and you know whether it’s disco rock, but we just told Bruce that we want a straight edge jazz so we got the fellas together Grady Tate, Ron Carter, George Benson, Stanley Turrentine.

Stanley was coming off a cool jazz festival, Ron was coming off a cool jazz festival. And we just went in the studio and we did it.

We had the champagne in the studio, of course, you know, compliments of the company and we just laid back and did it.

Also, Grady Tate’s wife brought us down some home cooked chicken and we just laid back and we was chomping on chicken and having a ball.

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.

We may not do this sort of recording again, I may not get with the fellas again. George, Ron, Grady Tate, Stanley Turrentine.

So we hope you enjoy listening to this album half as much as we enjoyed playing it for you.

Because we had a ball.

There’s nothing particularly enlightening or interesting about the “rap,” but I included all the words for a reason — it became the subject of a copyright case pitting jazz against rap.

Hip-hop artist Drake is not known for jazz organ, yet he’s become one of the most popular rappers on the planet. He apparently also has an ear for jazz. On his 2013 album Nothing Was The Same, he recorded “Pound Cake/Paris Morton Music 2,” on which Drake samples about 35 seconds of “Jimmy Smith Rap,” including the following lines:

Good God Almighty, like back in the old days.

You know, years ago they had the A&R men to tell you what to play, how to play it and  you know whether it’s disco rock, but we just went in the studio and we did it.

We had champagne in the studio, of course, you know, compliments of the company, and we just laid back and did it.

So we hope you enjoy listening to this album half as much as we enjoyed playing it for you. Because we had a ball.

Only real music is gonna last, all that other bullshit is here today and gone tomorrow.

A comparison between Smith’s text and Drake’s rap shows that Drake sampled a substantial portion of Smith’s work. While Drake and his record label obtained a license for the sound recording of “Jimmy Smith Rap,” they did not obtain a license for the composition. This led to Smith’s estate suing Drake, his record label, and numerous other entities for copyright infringement. Estate of James Oscar Smith v. Cash Money Records, Inc., et al., Case No. 14-cv-2703 (S.D.N.Y.).

On its face, this case does not appear to be appropriate for a summary judgment fair use ruling. Yet on May 30, the court granted the defendants’ motion for summary judgment, ruling that Drake’s use of the composition was a transformative fair use. The court’s analysis of the first fair use factor — the purpose and character of the use — was particularly interesting. The court focused on Drake removing material from Smith’s line, “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,” so that it read “Only real music is gonna last, all that other bullshit is here today and gone tomorrow.” The court found that the purpose of Drake’s track was “sharply different” from the purpose of Smith’s track. It found that while Smith focused on the primacy of jazz, Drake transformed the song to discuss just “real music” — without any mention of jazz.

This decision will likely be cited frequently by defendants who claim fair use in copyright litigation, as it provides an extremely broad interpretation of  what constitutes a transformative use. Simply put, according to this decision, a small change in lyrics which arguably shifts their meaning can constitute a transformative fair use. This rationale arguably could be applied to other media subject to a copyright claim.

 

 

These materials have been prepared by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP for general informational purposes only.
They are not legal advice. They are not intended to create, and their receipt by you does not create, an attorney-client relationship.

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