Complaining Work

Defending Work

Jimmy Smith

“Jimmy Smith Rap”

Audio clip

Aubrey Drake Graham [aka “Drake”]

“Pound Cake”

Audio clip


Comment by Charles Cronin

In 2017 District Court 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 (opinion linked below). More striking, however, is his granting summary judgment to the defendants based on his finding that Drake’s interpolating a sizable 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 it was meant as parodic, or whom or what was being parodied — should this brief alteration 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 deliberately waited two months after Drake’s recording was publicly released before lodging an infringement claim.

On 3rd of February, 2020, the U.S. 2nd Circuit Court of Appeals affirmed the District Court’s decision in a Summary Order (linked below), most likely drafted by a harried law clerk, which purports to apply the four statutory factors to determine whether defendants’ copying of the plaintiff’s work should be adjudged fair use. But was the Court correct to conclude that defendants’ use was transformative of the plaintiff’s protected expression? Did defendants use the plaintiff’s expression “for a purpose, or imbue it with a character, different from that for which it was created?” In fact, it appears that defendants used the plaintiff’s expression for precisely the same purpose — and imbued with the same character — for which it was created: to record the critical opinion of a seasoned jazz musician, in his own voice, and in language evoking a particular musical milieu. Had they transformed the plaintiff’s expression it would have lost its purpose, and value, as a foil to the import of the defendants’ own expression.



District Court Opinion by Judge William Pauley: PDF

Second Circuit Court of Appeals Summary Order: PDF

Amicus Brief of Digital Justice Foundation: PDF

Amicus Brief of IP Law Professors: PDF