Drake Plays Fair (Use)

Although the music industry is always evolving with new music being created, many artists will look back to music of the past and incorporate it in their new works. Many artists, particularly in hip-hop and electronic often use pieces of music from older songs to reinvent them in their new songs. Whether this is done properly, or whether the artist infringes on the copyrights of a prior work is common fodder for federal courts. Recently, hip-hop superstar Drake received a favorable decision from the Second Circuit affirming the holding from the lower court that his use of a spoken-word song from 1982, was considered fair use and not copyright infringement.

Sampling vs. Copyright Infringement

Copyright infringement is a serious offense that authors of original works take very seriously. Infringement is the use of a protected work without the author’s permission. Certain exclusive rights are granted to copyright holders – including the ability to distribute or reproduce the work. Copyright protection begins immediately at creation and does not require registration – copyright registration is a little different, basically, registering a work offers more protections, its encouraged but not required to protect a work. Taking someone else’s work and claiming it as your own or even just distributing it without their permission can carry serious punishment – it is a FEDERAL offense – the notice at the beginning of every movie you watch – it is real!

Sampling is something that often gets artists wrapped up in copyright infringement disputes. Sampling is – well kind of what it sounds like – its taking a piece of a copyrighted work and using a sample of it. We’ve all heard a popular song with a familiar snip of an older tune, from Jay-Z’s use of the musical theater hit “Hard Knock Life”, to Lady Gaga’s sample of Queen’s “We Will Rock You” in her song “You and I.” This is not to be confused with a “cover song” which is a musician’s reworking, updating or interpretation of an entire prior song (which by the way carries its own set of issues regarding licensing for non-infringing use). Under U.S. Copyright law sampling is legal WITH THE PROPER PERMISSIONS. In order to sample you must have permission from both the owner of master recording – usually owned by the label – and then also the permission from the owner of the underwriting musical composition – usually the publisher or the songwriter. With both of these permissions – and likely some type of license and fee – sampling is permitted.

However, in limited cases the Fair Use Doctrine may give an artist use of a prior work, without the need to license the work or pay the original artist(s) any fee for the use. While it is important that the law allow for protection of original works through copyrights, it also hold open several window for the “fair use” of those works in order to promote “the progress of science and useful arts.” If that sounds confusing, it basically is, and you should not attempt to rely on a fair use defense without assistance from an experienced intellectual property attorney or you may find yourself a copyright infringer.

What Drake Did

The Second Circuit ultimately held Drake did not sample or infringe on the complaining songwriters’ work as the songwriters suggested. The Second Circuit found that Drake his team used the song under the Fair Use Doctrine. The Fair Use Doctrine is a defense against copyright infringement. This legal doctrine was created to promote the freedom of expression by allowing unlicensed use of certain works in certain circumstances. However, it’s not just a free for all, there is an analysis that must be done to decide if a work is protected under fair use. The courts will look at the:

  • Purpose and character of the use,
    Is it the same purpose as the original or something different?
  • the nature of the copyrighted work,
    Not often a big factor, but used to examine the form of the new work
  • the amount of the work that is used, and;
    Is the new artist using just a piece or the whole thing?
  • the effect of the use of the work upon potential
    Could this new use harm any potential benefit the old work has?

Courts are always looking at each case on its own set of facts, there may be other factors considered, however these are the essential elements that will be analyzed.

Drake’s Case

Drake’s 2013 album Nothing was the Same, featured the song Pound Cake/Paris Morton Music 2 – with Jay-Z. This song features 35 seconds of a 1982 spoken-word single “Jimmy Smith Rap.” The Court found that Drake’s particular use of the “Jimmy Smith Rap” was transformative, meaning the new song used the old work for a purpose different from the purpose for which it was created. In this case, the original song was an ode to jazz music and its immortality, while the Drake and Jay-Z tune criticizes the original work by stating that their “real music,” will have the longest life because it is authentic. Additionally, the Courts agreed the small 35-second clip was not a substantial amount and also that this use in the new song does not really affect any potential markets for the old song.

The exciting aspect of this case is that Courts rarely rule in favor of the Defendant artist in music and songwriting cases. While this case will be persuasive authority in future cases, the Courts will still review each case on a case by case basis. Luckily for Drake, his use was fair! Artists and songwriters should consult an intellectual property attorney prior to any use of prior works in their new music. An intellectual property attorney can assist in properly licensing the older work if necessary, or to give a thorough analysis on whether a particular use may be fair use.

To read the full Estate of James Oscar Smith, et al. v. Aubrey Drake Graham, et al. opinion in detail click here.

For more information on protecting your copyright, questions on legally sampling music, prosecution or defense of copyright infringement lawsuits, or any other intellectual property needs, contact The Lomnitzer Law Firm at (561) 953-9300 or through our website form to schedule your free consultation.