Drake Winning Sampling Case Over Fair Use Is Big News... But Still Demonstrates The Madness Of Music Licensing

Something big happened last week in the world of music and copyright: a case about a music sample was won on fair use grounds. This basically never happens for a variety of problematic historical reasons. And yet, it did. The hip hop artist Drake was found not to be infringing on a Jimmy Smith composition due to fair use. And that's a big deal -- though the case also highlights the ongoing madness of today's copyright licensing laws (even beyond sampling). But we'll get there eventually. Let's start with the issue of copyright and sampling.

For years, we've talked about the pure madness of copyright law and music sampling. If you've never seen it, the documentary Copyright Criminals, is worth your time -- as it demonstrates how a bunch of stuffed shirt lawyers and clueless judges basically killed off an entire art form by demanding money for every tiny sample, no matter how much musicians transformed that sample. Album's like De La Soul's "3 Feet High and Rising" or the Beastie Boy's "Paul's Boutique" simply could not be made today -- which is just crazy. And the absolute worst court ruling regarding sampling was Grand Upright Music v. Warner Bros. from 1991 in which Gilbert O'Sullivan sued Biz Markie for making what was effectively a hip hop parody of his one big hit. The judge in that case -- Kevin Duffy -- never seemed to have any grasp of music, art, culture or even copyright law. His ruling in that case starts off with a total confusion about the difference between "stealing" and "copyright infringement."

"Thou shalt not steal." has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed. Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country.

That's... a bad way to open things. And, that case changed sampling. The other big case in this genre of bad sampling rulings is Bridgeport Music v. Dimension Films in which Judge Ralph Guy, bizarrely summarized things as follows:

Get a license or do not sample. We do not see this as stifling creativity in any significant way.

Notice the lack of any consideration of fair use or transformative works or anything of that nature.

And, tragically, few cases have really challenged this view since. While lots of lawsuits are filed over sampling, most settle. It's rare for anyone to make a fair use argument. To some extent, it's really seemed like the record labels themselves haven't wanted any of these cases to go to trial, because they'd hate to have a ruling that says sampling is fair use. Over the past few years, we've seen a few cases pop up where we hoped we'd get a court to recognize fair use in sampling -- and yet they all seem to settle before the cases get that far. Getting such a judgment on the books would be a big, big deal and might (once again) revolutionize culture and unleash tremendous creativity.

And so now we have the Drake case, which is, undoubtedly, a good ruling. But it's not clear it's going to make as big a difference as some might hope. The details here are... rather specific. Drake's song Pound Cake / Paris Morton Music 2 opens with a slightly altered, but clear "sample" of famed jazz artist Jimmy Smith's Jimmy Smith Rap. You might think that the Jimmy Smith Rap is a rap song, but it's just Jimmy Smith talking (it appears extemporaneously) about the fun he and some others had making the album Off the Top. But the recording got included on the album as a separate track. It's not a song. It's just Jimmy Smith talking. The Drake song uses a large chunk of the Jimmy Smith Rap unchanged.