In an opinion last week, Judge Pauley granted Drake and his co-defendants summary judgment in a case accusing them of copyright infringement. The case arose from the fact that Drake’s song “Pound Cake” opens with about 35 seconds of spoken words that are similar to a spoken word recording called “Jimmy Smith Rap,” by the jazz artist Jimmy Smith.
Judge Pauley found that Drake’s sampling was fair use because (among other reasons) it was “transformative” of the Smith track (referred to in the opinion as “JSR”):
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.”