Rapp on This: Drake’s Pound Cakes

Rapp on This: Drake’s Pound Cakes

If you’re in music recording, and especially in hip hop, you know what a mess licensing samples is. If you wanna use a sample from an existing recording legally, you have to contact both the relevant record company (which controls the recording) and the publisher (which controls the composition). Requests don’t get answered, and if they do, the rights owners can ask for any license fee they want, or they can just say no. Typically licensors want a bunch of cash up front, based on minimum sales figures you’ll probably never reach. It’s hideous.

We got here because of some awful court decisions (some terrible decisions in the early ’90’s effectively killed the sample-heavy genres of hip-hop pioneered by Public Enemy, De La Sol, etc.) and the refusal of Congress and the Copyright Office to institute reforms that would make sample licensing easy, fair and affordable. These days the only artists that can readily get the rights to sample are huge stars with big budgets. Everybody else has to go the pirate route.

A recent court decision in federal court in NYC does, I think, open the door a little bit. It’s actually quite remarkable. It involves Drake, who used an altered 35 seconds of a one-minute spoken word track recorded in the early ’80s by the legendary jazz organist Jimmy Smith for his track “Pound Cake”. Smith died in 2005 and the case against Drake (and various record companies, publishers, etc.) was brought by Smith’s estate and a publishing company named “Hebrew Hustle”, which, according to the court decision, had been hired by Drake to make sure that all rights had been cleared. Upon learning that the Jimmy Smith material wasn’t cleared, Hebrew Hustle contacted Smith’s estate and cut a publishing deal for the work, and was a named Plaintiff in the lawsuit. Which is weird. I’m guessing Hebrew Hustle won’t be working for Drake much in the future.

The facts get even weirder. While the six instrumental tracks on the Smith album were fully registered with the Copyright Office, the spoken word track, entitled “Jimmy Smith Rap”, wasn’t. Upon the Drake song’s release, Hebrew Hustle registered the copyright to the words. But no author for the track was listed in the liner notes of Smith’s album.

Drake had licensed the recording of the Smith track from Smith’s record company. But not the words, the composition, presumably because no author was listed on the Smith album. “Jimmy Smith Rap” is kind of an ode to jazz, with him talking about the sessions, the musicians, Grady Tate’s wife showing up with fried chicken, etc. The real hook is where Smith says “Jazz is the only real music that’s gonna last. All that other bullshit is here today and gone tomorrow.”

Drake digitally moved a bunch of words around, and has Smith saying “Only real music is gonna last, all that other bullshit is here today and gone tomorrow” over a music bed.

Remember, Drake licensed the recording from the record company, so his use of Smith’s voice is OK. And presumably, Smith’s estate got some of that licensing money. But how about the words? Smith’s estate testified that they wouldn’t have granted a license if asked, because Smith didn’t think much of hip-hop music.

The Court found Drake’s use was fair use, and not infringement. Fair use is an exception to the usual rule that you can’t use copyrighted works without permission when your use is for criticism, scholarly or educational purposes, or when your artistic use is transformational. This is esoteric stuff, and courts in general fall all over themselves getting fair use wrong, but the Court’s decision is laser-sharp and thoughtful and if you’re interested in this stuff, I encourage you to read it. The Court found that Drake had transformed Smith’s dismissal of all non-jazz music into a statement that all kinds of music will last, as long as that music is real. This changes the message, almost putting the message on its head. Because of this transformation, the Court said, Drake’s use was fair use, and not infringement.

By extension, I think that the fair use ruling would have also applied to the Smith recording, for the same reasons. But that question wasn’t before the Court. Which is too bad. Because of the money involved, I suspect that Smith’s estate and Hebrew Hustle will appeal this. I mean, I’m a big fair use guy, and I have trouble getting my head around the decision. Still, it’s really refreshing to see a court come down on the side of fair use, and to do it rigorously. It just doesn’t happen enough.

Paul Rapp is a Berkshire-based entertainment attorney who keeps promising himself he’ll never litigate a case ever again, and then goes and litigates anyway.

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