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Appellate Court Affirms Drake’s Sampling in Pound Cake was “Fair Use”

February 19, 2020


Toronto’s very own, Drake, has successfully defended his sampling of “Jimmy Smith Rap” as “fair use”. Three judges of the United States Court of Appeals for the Second Circuit upheld the lower court’s dismissal of a copyright infringement suit against the rapper earlier this month.

The subject of the lawsuit was Drake’s use of a 1982 spoken-word recording called "Jimmy Smith Rap", which he used to introduce his hit song, “Pound Cake”. Jazz musician Jimmy Smith’s estate alleged that this use was copyright infringement.

The Court of Appeal found that Drake’s sampling was “transformative” and used only a reasonable amount of the original work. In coming to this conclusion, the Court of Appeal contrasted the meaning of Drake’s work with Jimmy Smith’s:

The message of the “Jimmy Smith Rap” is one about the supremacy of jazz to the derogation of other types of music, which — unlike jazz — will not last. On the other hand, “Pound Cake” sends a counter message — that it is not jazz music that reigns supreme, but rather all “real music,” regardless of genre.

The Court of Appeal also found that there was no active market for “Jimmy Smith Rap” and, as a result, “Pound Cake” did not usurp demand for “Jimmy Smith Rap”.

“Pound Cake” went platinum on June 29, 2018 and peaked on the US Billboard Hot 100 at number 65.


Authors: Sam Galway and Jon Wall


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