Complaining Work

Defending Work

Jimmy Smith

“Jimmy Smith Rap”

Audio clip

Aubrey Drake Graham [aka “Drake”]

“Pound Cake”

Audio clip


Comment by Charles Cronin

Judge Pauley denied the plaintiff’s request for summary judgment having determined that the parties were still at issue over the factual issue of copyright ownership of the plaintiff’s work. More striking, however, is his granting summary judgment to the defendants based on his finding that Drake’s interpolating a sizeable portion of the plaintiff’s work into his own could be affirmatively defended as fair use. Pauley dutifully applies the four criteria for determining whether a defending work meets the standards for fair use, but his conclusions on the questions of the nature of the use, and the amount and substantiality of the use are surprising.

He emphasizes the fact that Drake’s song substituted the word “music” for “jazz” in Jimmy Smith’s short monologue, and that this substitution transformed the meaning of Smith’s song. This may be true but, given that Drake’s song wasn’t parodic — it couldn’t be because virtually no listener would be aware of who or what was being parodied — should this brief twisting of another’s words justify a substantial and literal copying of protected expression? This dispute may have been engendered by the defendants’ error in obtaining only a license for the plaintiff’s sound recording, but not the underlying work of verbal expression it contains. In any event, the court appears to have been bothered by the fact that the plaintiff was aware of this potentially unwitting error yet waited until two months after Drake’s recording was publicly released to lodge an infringement claim.



Opinion by Judge William Pauley: PDF