Drake Winning Sampling Case Over Fair Use Is Big News… But Still Demonstrates The Madness Of Music Licensing

from the copyright-criminals dept

Something big happened last week in the world of music and copyright: a case about a music sample was won on fair use grounds. This basically never happens for a variety of problematic historical reasons. And yet, it did. The hip hop artist Drake was found not to be infringing on a Jimmy Smith composition due to fair use. And that’s a big deal — though the case also highlights the ongoing madness of today’s copyright licensing laws (even beyond sampling). But we’ll get there eventually. Let’s start with the issue of copyright and sampling.

For years, we’ve talked about the pure madness of copyright law and music sampling. If you’ve never seen it, the documentary Copyright Criminals, is worth your time — as it demonstrates how a bunch of stuffed shirt lawyers and clueless judges basically killed off an entire art form by demanding money for every tiny sample, no matter how much musicians transformed that sample. Album’s like De La Soul’s “3 Feet High and Rising” or the Beastie Boy’s “Paul’s Boutique” simply could not be made today — which is just crazy. And the absolute worst court ruling regarding sampling was Grand Upright Music v. Warner Bros. from 1991 in which Gilbert O’Sullivan sued Biz Markie for making what was effectively a hip hop parody of his one big hit. The judge in that case — Kevin Duffy — never seemed to have any grasp of music, art, culture or even copyright law. His ruling in that case starts off with a total confusion about the difference between “stealing” and “copyright infringement.”

“Thou shalt not steal.” has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed. Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country.

That’s… a bad way to open things. And, that case changed sampling. The other big case in this genre of bad sampling rulings is Bridgeport Music v. Dimension Films in which Judge Ralph Guy, bizarrely summarized things as follows:

Get a license or do not sample. We do not see this as stifling creativity in any significant way.

Notice the lack of any consideration of fair use or transformative works or anything of that nature.

And, tragically, few cases have really challenged this view since. While lots of lawsuits are filed over sampling, most settle. It’s rare for anyone to make a fair use argument. To some extent, it’s really seemed like the record labels themselves haven’t wanted any of these cases to go to trial, because they’d hate to have a ruling that says sampling is fair use. Over the past few years, we’ve seen a few cases pop up where we hoped we’d get a court to recognize fair use in sampling — and yet they all seem to settle before the cases get that far. Getting such a judgment on the books would be a big, big deal and might (once again) revolutionize culture and unleash tremendous creativity.

And so now we have the Drake case, which is, undoubtedly, a good ruling. But it’s not clear it’s going to make as big a difference as some might hope. The details here are… rather specific. Drake’s song Pound Cake / Paris Morton Music 2 opens with a slightly altered, but clear “sample” of famed jazz artist Jimmy Smith’s Jimmy Smith Rap. You might think that the Jimmy Smith Rap is a rap song, but it’s just Jimmy Smith talking (it appears extemporaneously) about the fun he and some others had making the album Off the Top. But the recording got included on the album as a separate track. It’s not a song. It’s just Jimmy Smith talking. The Drake song uses a large chunk of the Jimmy Smith Rap unchanged… but does make a few small edits, including changing Smith from saying “Jazz is the only real music that’s gonna last. All the other bullshit is here today and gone tomorrow” to just saying “Only real music’s gonna last. All that other bullshit is here today and gone tomorrow.” Apparently the Jimmy Smith estate wasn’t too happy with the changed meaning.

But here’s the oddity: Drake’s label licensed that track. So everything should be fine, right? Wrong. You forgot: music licensing is a swampy mess of insanity and patched together weirdness. As we’ve discussed elsewhere, when using a song, there are multiple different licenses you might need to get. You have to do one thing to license the sound recording, but something else entirely to license the “composition.” The theory there is that one license pays the musicians and another pays the songwriters (though, in reality, it’s often middlemen who get the money). Here, it seems that Drake’s label didn’t license the “composition” to pay the “songwriter.” And your first reaction might damn well be “what songwriter? there’s no damn song!” And you’d be right. Hell, even Jimmy Smith never registered the copyright as a composition. It was only his estate that registered the copyright 31 years after the not-really-a-song was released and only after they heard the Drake song and decided they didn’t like it at all.

So, then, after registering the copyright on the composition (and even though the sound recording was properly licensed), the Jimmy Smith Estate sued Drake. And it’s this that’s found to be fair use. The judge, William Pauley, goes through the four factors. The first one, discussing whether or not the work is transformative may be the most interesting. The judge looks at a few different ways that Drake’s lawyers argued the use was transformative — and actually rejects two of the three arguments. He’s not impressed by the argument that because Drake doesn’t reference Jimmy Smith’s album, he’s using the words to refer to the process of making his own album (which is… a very weak argument). Similarly, he doesn’t buy the fact that the addition of some quiet background music and general shifting of the words around is transformative. That… seems like a valid fair use analysis.

But the argument Judge Pauley finds convincing is interesting. He accepts the idea that by changing the meaning of the words, by cutting out the “jazz is the” from the “only real music that’s gonna last,” Drake may have created a transformative work:

Defendants? first argument, on the other hand, strikes on a compelling reason to find this use transformative. There can be no reasonable dispute that the key phrase of JSR? ?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.??is an unequivocal statement on the primacy of jazz over all other forms of popular music. Defendants? use of JSR, by contrast, 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.? Thus, Defendants? ?purposes in using [the original work] are sharply different from [the original artist?s] goals in creating it.? Blanch v. Koons, 467 F.3d 244, 252 (2d Cir. 2006). 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.?

I’ll admit I’m surprised (pleasantly so…) by this part of the ruling. If followed by other courts (and this is a non-precedential district court ruling, so don’t get too excited…) that alone could be pretty big. Though, again, it’s focused on changing the meaning of the composition and not the music… so not that useful for other music sampling cases.

As for the other factors, the judge argues that the second factor (the nature of the work) weighs against fair use. I’d actually argue that this one should have gone the other way, especially seeing as the “composition” wasn’t actually a “composition” but just someone talking about his experience… but, that’s not what happened here. On the third factor, on the amount used — again, the court surprises me. Many courts tend to just look at the overall amount used and if it’s a lot they say “no fair use” — with a few importance exceptions. And, Drake used most of the Jimmy Smith Rap, even if it’s rearranged. But relying on the important ruling in the Google Books case, Judge Pauley notes that the question here is whether or not the amount of copying was “reasonable in relation to the purpose of the copying” rather than at an absolute level. And here, it weighs towards fair use:

Here, the Court finds the amount taken by Defendants to be reasonable in proportion to the needs of the intended transformative use. 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 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. Accordingly, this factor favors a finding of fair use.

Finally, on factor four — the impact on the market — the court again finds in favor of fair use:

There is no evidence in the record to suggest that Pound Cake usurps any potential market for JSR or its derivatives. JSR, a spoken-word criticism of non-jazz music at the end of an improvisational jazz album, targets a sharply different primary market than Pound Cake, a hip-hop track. Further, Plaintiffs never attempted to establish a market for licensed derivative uses of the JSR composition copyright until Defendants used the recording on the Album. See Campbell, 510 U.S. at 592 (?The market for potential derivative uses includes only those that the creators of original works would in general develop or license others to develop.?). These considerations, coupled with the finding that Defendants? use is highly transformative, forestalls the conclusion that Defendants took such ?sufficiently significant portions of the original as to make available a significantly competing substitute.? Authors Guild, 804 F.3d at 223. Thus, the fourth factor favors the Defendants.

That seems pretty straightforward and correct.

Thus, with three of the four factors — including the big first one — pushing towards fair use, the use is declared to be fair, and thus not infringing.

I wouldn’t be surprised to see the case appealed — but the 2nd Circuit Appeals court has a history of being pretty good on fair use, so hopefully… it would hold up. Still, given the specifics of this case, and mostly the fact that it’s about the composition, rather than the sound recording, I’m not sure that any ruling here would have that big an impact on sampling. We still need a better sampling case to hit the courts where fair use might be a useful tool.

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Comments on “Drake Winning Sampling Case Over Fair Use Is Big News… But Still Demonstrates The Madness Of Music Licensing”

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TechDescartes (profile) says:

The Irony is Delicious

The Drake song uses a large chunk of the Jimmy Smith Rap unchanged… but does make a few small edits, including changing Smith from saying "Jazz is the only real music that’s gonna last…" to just saying "Only real music’s gonna last…" Apparently the Jimmy Smith estate wasn’t too happy with the changed meaning.

While it remains to be seen whether Drake’s music lasts, there is a certain irony in the "Jimmy Smith Rap" having continuing value only because of Drake using it in a non-jazz song.

ECA (profile) says:


Got a list of How many people I have to PAY to sample a song?? Play a song? Have a NEW song produced and NOT be sued by a 3rd party for something that was An accident in RECORDING A RIFF/RHYTHM/Pattern created 50 years ago??

In Music and movies??

HOW about a small bit of CODE in a game that makes better weapons or Drop rates in Bullets and cannons..
(yes we are 1 of those countries that PATENTS COMPUTER CODE, not just programs)

Anonymous Coward says:

Re: anyone??

Unless you have a network of friends in the industry your only option is the good old “write us to get a quote”.

If you don’t know who to write to, you can wait until you get a nasty letter saying “pay us this many bajillion USD or we’ll sue”.

Safest option is to avoid using samples or code you randomly find online. Only go for well tested, established, licenses (LGPL, MIT, BSD).

Don’t try to twist the law. Most judges will appreciate honesty and hopefully you won’t have to pay through the nose.

Bruce C. says:

It's just enough...

Nowadays, with auto-tune and all the other sound transformation tools available, I bet most artists can record and edit their own sample so that it sounds just enough like the original to suit their purpose. But since it isn’t a sample of the original recording, the only license that will be involved is the songwriting/composition license that was ruled on here. Here’s hoping the ruling stands up on appeal.

Anonymous Coward says:

Re: It's just enough...

And the judge will begrudge you for trying to twist the law.
And then you’ll lose.
The truth is that 99% of the time it’s quite improbable one will come up with a truly new/original sound.
But, given music is seen as art, as long as it doesn’t look like you explicitly tried to copy someone, most judges/juries will be sympathetic.

My_Name_Here says:

Once again Mike Masnick celebrates his novel legal theories. You’d better hope Jimmy Smith doesn’t come after you, Masnick, or it’ll take more than T-shirts to fund yourselves against Shiva. Where are the new T-shirts, anyway? I’m never going to stop asking you these inconvenient questions. I warned you, I will call you out, every time!

PaulT (profile) says:

Re: Re:

Wow. Are you actually one of those idiots who kept claiming that t-shirts were the only possible alternative music business model? Then, despite all the proven, working alternatives and the recording industry having destroyed the opportunities in front of them, you still think that’s the only way?

That makes sense, actually. You probably are the same idiot who’s been trolling here for the last decade with nonsense. It’s almost comforting to know that there’s not a cluster of obsessed idiots and people who have been fooled by the transparent industry propaganda, just the one sad lonely little basket case.

My_Name_Here says:

Re: Re: Re:

Paul, with due respect, you are arguing with Leigh using a fake nick. My posts are delayed 24 to 48 hours. so generally you don’t see my comments in the “first round” on any topic. That the comment was posted at 8:02 and the first response to it was 30 minutes later, you can tell that it is just not really me.

The fake nick issue here is huge. Techdirt and their minions seem to be having a good laugh baiting people like you with seriously trolling comments. Leigh just isn’t very good at this stuff, they seem to be a bit better when Tim writes them.

My_Name_Here says:

Re: Re: Re:2 Re:

Creating an account here is all but meaningless. The system still allows people to post using the nick, it will just not have an icon if you added one. Otherwise, it’s all the same. Techdirt refuses to protect registered nicks in any way.

But then again, you know that already.

PaulT (profile) says:

Re: Re: Re: Re:

“Paul, with due respect, you are arguing with Leigh using a fake nick.”

I eagerly await your evidence for this.

“My posts are delayed 24 to 48 hours”

Because you’re a trolling asshole. Nobody else seeems to have this problem on a regular basis, and contrary to your paranoid assertions, there’s not a person hovering over your posts to block them. You’re simply falling foul of the spam filter since your posts are always reported for their trollicious content.

Plus, even this assertion is obviously false on its face, since your comment is visible less than 24 hours after the article was posted. Do you ever tire of lying?

“The fake nick issue here is huge.”

Then, please, post your article with the relevant evidence and show us all to be fools!

No, the fact that some people mock you by “borrowing” your handle doesn’t count, since you openly refuse to take the necessary steps to avoid this. But, it does offer a handy get out when too many people mock your posts and you can pretend you didn’t write them, hey?

My_Name_Here says:

Re: Re: Re:2 Re:

Always fun to watch you get worked up. You got pissed off at the fake nick because you thought it was me, which sort of proves you will disagree with me just to be disagreeable.

That said, let me touch on your points. First off, I already explained the issues. My posts get delayed. If a post is not delayed, I didn’t post it. The current troll (who appears to be a staff member) is pretty consistent on every other post or so on here, and usually with pretty lame stuff.

When I post, my messages do not appear here. They do immediately into a holding queue for review. Until they review it, it does not appear. It’s not about being flagged (but you love to do it) it’s before anyone gets to see the post. Quite simply, I am censored before my posts even hit the site.

Generally, my posts are approved when someone from the admin decides to show up and review the queue. That is usually in the morning and something through the day, rarely on weekends, and never after about 9PM west coast time.

You can see it simply by checking how long it takes anyone to answer my real posts – hours, sometimes NEVER, even when my post is very high / early in a thread, because most people never see them.

” the fact that some people mock you by “borrowing” your handle doesn’t count,”

When it’s done consistently with the intent to troll you guys should be more disturbing to you. You answered a troll fake nick post with all the seriousness you can muster. The guy is laughing at you – and it’s not me. I suspect somewhere Leigh is pissing his pants laughing at you.

Anonymous Coward says:

Re: Re: Re:2 Re:

Hell, he doesn’t have to look far.

In this article (https://www.techdirt.com/articles/20170531/14485737489/music-licensing-swamp-spotify-settles-over-failure-to-obtain-mechanical-licenses.shtml) his nonsense is posted within three hours of the article going online – after which there’s a four hour period before he gets a response, and he’s responded to it in two hours. Had the “holding back” system specifically targeted his IP address as he claims this wouldn’t have happened – and the article came from earlier this week, so it’s clearly not cherrypicking from earlier on in the year.

My guess is that after posting furiously via his mobile phone, multiple times, trying to hack his way into an IP address to spam his typical “oh woe is me” concern trolling, the system finally got to work.

My_Name_Here says:

Re: Re: Re:3 Re:

First answer is 5 hours after (my post fell within Techdirt moderation hours and was added pretty quickly) but was into the next afternoon before any responses to the next one (which fell into the next moderation cycle).

If I post too late on Friday, it generally gets approved in Monday morning, sometimes Saturday if Leigh decides not to be lazy and clear the queue.

Oh, and you can ask Mike. All of my posts are from the same desktop, and he knows it. He hates it, but he knows it.

PaulT (profile) says:

Re: Re: Re:3 Re:

“Had the “holding back” system specifically targeted his IP address as he claims this wouldn’t have happened”

Oh, I have no doubt that the IP address is being targeted. It’s just that it’s because he’s being reported by the community for being such a colossal ass and being diverted temporarily to the spam filter for that reason. Since he refuses to create a login, this has to operate on the IP address.

It’s almost amusing that the people he’s claiming are deliberately holding back his messages are actually the people manually approving his messages. TD staff are taking his message out of the queue, not putting them there. As he often demonstrates, his delusions are the polar opposite of reality.

My_Name_Here says:

Re: Re: Re:4 Re:

Paul, see my post above – I get that when I post. Doesn’t matter if I post with or without my name, with a different browser, etc… any posts from this PC are specifically held and “moderated”. If it’s a weekday during the day, the posts are generally approved the next morning, sometimes later the same night if they feel the urge to check the queue. On the weekends, my comments are often held from Friday until Monday morning.

People don’t get to vote on my posts. They are held AS THEY ARE POSTED. Can you please actually look at what is happening and stop making up stories to fit your narrative? If the Techdirt staff had any balls, they would be telling you this themselves – but then it would require them to admit that they have censorship tools in place, which would go entirely against their public stand on censorship.

I actually find it pretty funny. I also find it pretty funny that your mind can’t grok it.

The Wanderer (profile) says:

Re: Re: Re:5 Re:

If I’m understanding things right, the reason your posts are being held for moderation is because the system is detecting them as coming from someone who has been flagged (and hidden) disproportionately often in the past.

I.e., this would be the sequence of events:

  • You make a number of posts.
  • Many or all of them get flagged and hidden.
  • You make another post.
  • The system recognizes "Hey, this guy tends to get flagged a lot, maybe we should check this post before letting it through", and your post gets sent to the moderation queue.
  • Someone on the TD staff checks the moderation queue (maybe immediately, maybe hours later, maybe days later, depending on the timing and the circumstances), sees that your post isn’t spam, and lets it through.

That would seem to result in the scenario we see without anyone specifically filtering your posts; it’s just the system working as designed, and in fact the people you rail against (the TD staff) are the ones letting your posts out of moderation.

And the root cause of it would be the fact that your previous posts have inspired the community to flag them as trolling on too many occasions. Whether you want to place the blame for that on the community or yourself, you certainly can’t really blame it on the TD staff.

My_Name_Here says:

Re: Re: Re:6 Re:

Your logic would be good if it wasn’t so intentional. Moreover, as I am not logged in, the system could be set up with false positives by people posting under my name. That would be pretty poor design!

Moreover, my ISP rotates my IP from time to time, they have been through 4 or 5 in the last day or so (I think they have network issues, all those gigabit connections can do that!). So it’s not IP based, and it’s not username based.

Oh, and I deleted all the cookies related to Techdirt (did you know this site sets more than 50 cookies per page? Your privacy is “valuable”, I gather!). So it’s not related to cookies either – unless one of the third party cookies is being used. However, since I trashed ALL of the cookies (and have tried a different browser as well) I can tell you it is something else, something much more stubborn.

My guess is that all of the IP blocks of my ISP have been marked as TOR exits or something similar. If I show up on a block of IPs, it’s marked as TOR and that means all posts go to moderation. It’s automatic and unavoidable.

Why? Quite simply, Techdirt does not like my opinion. I don’t sing with the choir, I don’t line up to kiss the boss’s ass, I point out where things look stupid and where things look way too one sided to be real. That doesn’t make me the most popular guy in town, you know?

Discussion is best when you discuss with people who don’t agree with you all the time. Suckups and toadies are good for the ego, but very, very bad for the intellect. It leaves you believing your shit don’t stink from time to time. It’s one of the many reasons that Alexa (as an example) shows Techdirt in a pretty consistent decline in the last couple of years. Too much politics, too little opposing viewpoints, too little meat on the bone. It’s the reason why threads like this and a few others on similar subjects are popular, because they are incredibly rare in what has become and more and more controlled, channeled, and censored walled garden.

I don’t troll. I will say that one or more members (who appear to be Techdirt staff, based on writing style and attitude) have been posting using my name, putting up incredibly trolling comments. Some of the less intelligent around here have fallen for them and gotten very upset. Not my problem, and if that is the basis under which I am censored, then well, the system fails and should be called out.

Honestly, that a free speech bastion like Techdirt has any automated censorship system in place is abhorrent. Regular readers (and financial supporters of the site) should be appalled that the guy pushing free speech the hardest is also the one running a censorship system. That is pretty dark, don’t you think?

Anonymous Coward says:

Re: Re: Re:7 Re:

No, what you do is kiss another boss’s ass. Even if a policeman raped a baby, even if copyright groups scam the artists they’re supposed to represent, you’ll find some way to defend it no matter how convoluted. Yeah, Alexa readings are down, you’ve been beating that point to death. And yet that somehow isn’t enough for you; you have to portray yourself as some sort of martyr of debate by claiming that unchecked police behavior is a good idea. There’s being contrarian for perspective’s sake, and there’s being a petulant douchebag. Guess which one you are.

Fact is, you got called out by Masnick while under another name (which you also frequently switch), and responded to it with nothing but a pile of drivel that in summary stated “Yeah, I’m gonna troll, and I’m gonna keep doing it, and you’re never going to get rid of me”. That’s supposed to sound like someone who supports and espouses rational discourse? Bitch, please.

And your ISP? Big fucking deal, maybe they run TOR exit nodes. That would make them criminals, according to your metrics. Maybe you should ask them to stop doing it. Or if you don’t like the terms… do without. That’s what you like saying, after all.

PaulT (profile) says:

Re: Re: Re:7 Re:

“Moreover, my ISP rotates my IP from time to time, they have been through 4 or 5 in the last day or so (I think they have network issues, all those gigabit connections can do that!). “

Or, you’re restarting your router a lot. Or, another side-effect of your obsessive dishonest tactics. Most broadband routers will keep an IP for a much longer time.

“Oh, and I deleted all the cookies related to Techdirt (did you know this site sets more than 50 cookies per page? Your privacy is “valuable”, I gather!). “

Did you know you can run an ad blocker and/or browse in incognito mode to avoid those? Mike has actually written numerous articles telling you he’s OK with that, unlike many other sites.

“My guess is that all of the IP blocks of my ISP have been marked as TOR exits or something similar.”

That’s possible but it contradicts your earlier claim that blocks cannot be IP based.

“It’s one of the many reasons that Alexa (as an example) shows Techdirt in a pretty consistent decline in the last couple of years.”

BUt, as I’ve asked before, who actually cares about Alexa ranking? You’ll find more people confused that it’s not an Amazon service than people who take its metrics as gospel nowadays. I’m sure its Yahoo search ranking is also not as good as before. Why does that matter?

” I point out where things look stupid and where things look way too one sided to be real”

No, you lie your ass off, refuse to back up any of your statements then directly insult people when they call you out on your bullshit.

Did you ever consider that not acting the way you do will prevent your posts from getting reported regularly, and thus the pool of IPs you use will not be diminished? Certainly easier than attempting various tricks to get around the community blocking you then whining when your attempts fail.

It would certainly take less time than you spend composing your many paragraphs that most won’t bother to read (not because it’s “censored” but because it’s way too long and obviously self-centred whining from the start)

“I don’t troll”

Re-read your posts, maybe get someone without an agenda to read them to you. If not trolling, it’s an uncanny impression of someone who does.

“Regular readers (and financial supporters of the site) should be appalled that the guy pushing free speech the hardest is also the one running a censorship system.”

They would be if that was what was happening. But, you still appear to have missed the point that it’s the community hiding your posts, not the people who run the site (while leaving options for community members who wish to see the posts regardless). That would tell an honest person something.

Anonymous Coward says:

Re: Re: Re:5 Re:

I seem to recall a common refrain of copyright fans that you’re not entitled to what you feel is a suitable expression of your speech. Sucks to have to bear the consequences of your own idiocy, don’t it? You could always spam the site on your mobile phone, or do what your fellow fanboy out_of_the_blue does – use a TOR IP address. (Does he know that running a TOR exit node could get you in trouble, just like you said? You might want to tell him, lest he get some poor schmuck in trouble and get himself arrested too. Tertiary liability and all that, I know you copyright fans are absolutely in love with the concept.)

The funny thing is, people vote on your posts anyway, just not insightful as you’d like. Honestly, if enough people voted on your posts you’d whine about them being reported. But there’s never pleasing copyright fans.

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