The following is a guest post by Julie Grob, coordinator for instruction in Special Collections at the University of Houston Libraries. This week, we’ll feature posts by members of the UH Libraries Copyright Team highlighting Fair Use/Fair Dealing Week 2018.
Fair use doctrine allows a songwriter to use a limited part of an existing song in the creation of a new work. When assessing a legal defense based on fair use, one of the considerations that judges take into account is whether or not the new use is “transformative.” Such was the basis of a ruling by a New York federal judge in favor of the rapper Drake and his 2013 song “Pound Cake,” from the album Nothing Was the Same.
“Pound Cake” includes a sample of the 1982 spoken word song “Jimmy Smith Rap” by the late jazz musician Jimmy Smith. Smith’s Estate filed suit against Drake in 2014, saying that the hip hop artist had violated Smith’s copyright. While the Jimmy Smith song says “Jazz is the only real music that’s gonna last,” Drake’s song claims that “Only real music’s gonna last.” Judge William H. Pauley III explained his ruling in favor of Drake by writing that “Because this purpose is ‘sharply different’ from Jimmy Smith’s purpose in creating the original track, Defendants’ use is transformative and this factor weighs in favor of a finding of fair use.”
Such a finding is rare in songwriting cases.