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Robert J. Bernstein and Robert W. Clarida

Jazz musicians often make liberal use of quotation in their improvised solos. While playing a Gershwin tune, for example, a player might drop in sly references to several other show tunes, a lick from an obscure Count Basie out-take and the last two bars of the Charlie Brown theme. Perhaps ironically, in a recent Southern District infringement action, the heirs of legendary jazz organist Jimmy Smith argued against a fair use defense raised by hip-hop artist Drake based on his “transformation” of Smith’s “rap-like” commentary on the last track from his 1982 album, Off the Top.

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