The district court cited as support Blanch v. In the district court's words:Īlthough it is certainly true that the object of a parody must be ascertainable to the average observer - and with reason, for what good is parody if the listener cannot identify the target of derision? - this is not a universal prerequisite for finding a transformative use. To the district court, the obscurity of "Jimmy Smith Rap" was irrelevant because "Pound Cake" was not a parody under Campbell v. The Second Circuit didn't address this question, but, fortunately, the district did. Doesn't this mean that Drake is, essentially, shadow boxing? If my suppositions are right (and, of course, I think they are), can this truly be a transformative use? And certainly anyone listening to Drake's modifications of Smith's rap, without the benefit of this background knowledge, would have absolutely no idea that Drake is engaging in a debate with Smith about the supremacy of Jazz vs other genres. I don't think I am going out on a limb by saying that it is highly unlikely that fans of "Pound Cake" would have any idea that Smith ever walked the face of the Goddess's green earth, let alone that he penned "Jimmy Smith's Rap." I bet that even someone familiar with "Jimmy Smith Rap" in its original form would be hard pressed to recognize the subtle changes made by Drake. To the best of my knowledge, Smith's rap is beyond obscure - the deepest of deep cuts. different from that for which it was created.” As a result, Drake "criticizes the jazz-elitism that the 'Jimmy Smith Rap” espouses' and therefore uses the copyrighted sample "for a purpose. Drake achieves his "counter message" by carefully editing Smith's words and placing them in the context of (and at the very beginning of) a nearly seven-minute long song in which Drake and Jay-Z rap about the greatness and authenticity of their work. According to the court, "Jimmy Smith's Rap" conveys a message "about the supremacy of jazz to the derogation of other types of music." (In Smith's own words, jazz is "the only real music that's gonna last.") By contrast, in "Pound Cake," Drake conveys what the court describes as a "counter message": that all "real music," regardless of genre, reigns supreme. The Second Circuit agreed with the district court that Drake's use of "Jimmy Smith Rap" in "Pound Cake" was transformative and that, therefore, the first fair use factor favored the defendants.
Here's a rundown of the court's decision. The Second Circuit affirmed in a summary decision. The district court granted summary judgment for Drake and the other defendants on fair use grounds.
(More about that in a minute.) With registration in hand, the plaintiff's sued. Indeed, the plaintiffs only obtained a registration after Drake's album dropped. Why? Perhaps because Smith never secured a copyright registration for the work during his lifetime.
Interesting fact: Drake and the other defendants obtained a license to use the sound recording of "Jimmy Smith Rap," but not the underlying composition. This redline shows Drake's modifications: Pound Cake opens with a 35-second sample from "Jimmy Smith Rap." Drake edited out about half of Smith's original words, changed " jazz is the only real music that’s gonna last" to " only real music is gonna last," and reordered things so the modified phrase comes at the very end of the sample. In 2013, Drake, a Canadian musician of some renown, released the song “ Pound Cake/Paris Morton Music 2” (“Pound Cake”), featuring vocals by Jay Z, a Brooklyn recording artist of some renown.
The plaintiffs are the successors in interest to the copyright in "Jimmy Smith Rap." In the early 1980s, Jimmy Smith, an American jazz musician of some renown, recorded the album Off the Top, consisting of six instrumental jazz recordings and a spoken-word piece titled “ Jimmy Smith Rap.” In his rap, Smith shares the behind-the-scenes story of how Off the Top got made, explaining that he and his collaborators had decided to make "a straight edge Jazz" record because "jazz is the only real music that’s gonna last." Smith died in 2005.