No. 2:19-cv-12258 (E.D. La. 2019)

Comment by Juris Klavins

New Orleans musician Sam Skully alleges Drake – along with artists Big Freedia, BlaqNmilD, and their respective record labels – sampled his beat “Roll Call (Instrumental)” in two of Drake’s 2018 Billboard No.1 hits “Nice for What” and “In My Feelings”. In 2000, Skully produced the beat in question, which was then featured on the Vockah Redu and Tha Crew Can’t Be Stopped CD. A “beat” in this context means the underlying recurring rhythmic track of a song.

In a 2019 Genius News interview (available on YouTube) the producer BlaqNmilD (co-producer of “Nice for What” and “In My Feelings”) said he added a bounce beat, titled “That Beat”, to a number of tracks by Big Freedia and Drake. Skully claims “That Beat” was a direct copy (i.e. sample) of his copyrighted track “Roll Call (Instrumental)” and not a new performance or interpretation of it. Although the complaint does not state how Skully learned of the infringement, it is not inconceivable that one night, whilst browsing through cat videos on YouTube, Skully stumbled upon the Genius interview and saw BlaqNmilD’s inadvertent admission, accompanied by an audio spectrum of That Beat, and decided to sue. While BlaqNmilD said in the interview that this type of beat is used a lot in bounce music, he did not indicate where he got this particular track from leaving the question of access up for debate.

Drake’s celebrity and affluence make him an attractive target for such claims, and this is not the first time he has been sued for copyright infringement with respect to sampling. In a 2017 suit in New York, Drake prevailed by successfully arguing that his use of a spoken-word recording was a transformative Fair Use. The prospect of effectively using a similar argument in this case, however, is rather low. In order for a work to be deemed transformative, it has to add something new, or be of a different character. The plaintiff could counter such a claim of transformative fair use by arguing that the whole point of adding the beat to the defendants’ tracks was to add the New Orleans bounce scene character of his beat. It remains to be seen whether the Fair Use defense will be employed and what the court in Louisiana will ultimately decide. However, should the balance tip in Skully’s favor, he could be in for a six-figure payday and copyrights in Nice for What and In My Feelings would be invalidated.

Complaint: PDF