Furthermore, melodic samples are more easily found to be protected, therefore failing to satisfy the first factor of the fair use test. Judges usually do not go the lengths to determine whether the music in question has a transformative purpose.

When it comes to sampling, it’s pretty rare to succeed on a fair use defense. Since Drake’s label did not obtain this license, Smith’s Estate embarked on a 6-year-long legal battle against Drake and Cash Money Records claiming copyright infringement of the written composition.ĭrake’s best legal defense is premised on an age-old doctrine known as fair use which stresses that any use by reproduction in copies for purposes like “criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright.” The factors considered to determine fair use are: (1) the purpose and character of the use (including whether it is commercial or nonprofit) (2) the nature of the copyrighted work (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole and (4) the effect of the use upon the potential market for or value of the copyrighted work. įor Drake’s song Pound Cake, (featured on his 2013 album, Nothing Was the Same), Drake samples Jimmy Smith’s spoken word record, “Jimmy Smith Rap,” to creatively allude to his own album’s recording process and add commentary on the longevity of “real music.” Drake’s label obtained the recording license of “Jimmy Smith Rap,” but not the composition license. sheet music) and the license for the original sound recording. There are normally two licenses that are required for a sample clearance: the license for the original musical composition (i.e. When it comes to sampling in music, artists and producers must go through a structural process of obtaining licenses to incorporate other works into their own. All that other bullsh** is here today and gone tomorrow…”Įarlier this year, the Second Circuit Court of Appeals affirmed a major decision holding recording artist Aubrey “Drake” Graham’s sampling of Jimmy Smith as fair use.

Drake pound cake beat