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.

Last May, in Estate of Smith v. Cash Money Records, 14-cv-2703 (S.D.N.Y. May 30, 2017), U.S. District Judge William H. Pauley III granted summary judgment to Drake and his various labels and publishers, finding that the use of a 35-second excerpt from a 60-second spoken-word track on Off the Top was a transformative fair use. Although not providing guidance on fair use of musical quotations by or from jazz musicians, the decision is of interest for both its treatment of Drake’s lengthy re-contextualization of Smith’s commentary and its relatively rare, even if tangential, application to a jazz recording.

Facts

The basic facts are these: The final track of Smith’s 1982 recording was a 60-second spoken-word recording called “Jimmy Smith Rap” (JSR) consisting of the following text spoken by Mr. Smith:

Good God Almighty, like back in the old days

You know, years ago they had the A & R men to tell you what to play, how to play it and you know whether it’s disco rock, but we just told Bruce that we want a straight edge jazz so we got the fellas together Grady Tate, Ron Carter, George Benson, Stanley Turrentine.

Stanley was coming off a cool jazz festival, Ron was coming off a cool jazz festival. And we just went in the studio and we did it.

We had the champagne in the studio, of course, you know, compliments of the company and we just laid back and did it.

Also, Grady Tate’s wife brought us down some home cooked chicken and we just laid back and we was chomping on chicken and having a ball.

Jazz is the only real music that’s gonna last. All that other bullsh*t is here today and gone tomorrow. But jazz was, is and always will be.

We may not do this sort of recording again, I may not get with the fellas again. George, Ron, Grady Tate, Stanley Turrentine.

So we hope you enjoy listening to this album half as much as we enjoyed playing it for you. Because we had a ball.

Id. at 2.

In September 2013, Drake released an album entitled Nothing Was the Same, the last track of which was called “Pound Cake/Paris Morton Music 2.” The opening of that track included a 35-second sample of JSR, edited to read as follows:

Good God Almighty, like back in the old days

You know, years ago they had the A & R men to tell you what to play, how to play it and you know whether it’s disco rock, but we just went in the studio and we did it.

We had champagne in the studio, of course, you know, compliments of the company and we just laid back and did it.

So we hope you enjoy listening to this album half as much as we enjoyed playing it for you. Because we had a ball.

Only real music is gonna last, all that other bullsh*t is here today and gone tomorrow.

Id. at 3.

The defendants had obtained a license to use the master recording of JSR but did not secure the underlying rights in what the court calls the “lyrics,” as would be customary when using a lengthy sample of a recorded musical composition. For copyright purposes, however, the spoken-word text embodied in the Smith recording is protected as a separate work of authorship, just as fully as if it had been the written lyrics and melody of a song. The Smith estate learned of the Drake recording just prior to its release, and registered copyright in the text of JSR about one month after the release, following up with a cease and desist letter. Litigation ensued, and cross-motions were filed for summary judgment.

Defendants moved for summary judgment on three grounds: Smith’s authorship, substantial similarity, and fair use. The court denied the motion as to the first two grounds, finding issues of disputed fact regarding ownership and holding that the similarity determination was inherently subjective and thus better suited to resolution by a jury.

The Court’s Fair Use Analysis

The court granted the defendant’s motion on fair use grounds, however, rendering the other issues moot. Applying the four statutory factors under §107 of the Copyright Act, the court found that three of them favored the defendants. The first factor, which looks to the purpose and character of the use, favored defendants because their use was transformative. As the court noted, “[u]ltimately, fair use analysis asks a simple question: is this the type of use that furthers the essential goal of copyright law and should be excused from liability for infringement?”

Here, the court answered that question in the affirmative primarily because the use of the text in the Drake recording did not “merely supersede the objects of the original creation” but instead added “something new with a further purpose or different character, altering the first with new expression meaning or message.” Id. at 14, quoting Campbell v. Acuff-Rose Music, 510 U.S. 569, 579 (1994). Not all of defendants’ alterations counted in their favor, however. Defendants argued that their use was transformative because it added background music and rearranged some words from Smith’s original text, but the court rejected this argument. Such changes may result in the creation of a derivative work, but that does not per se make them “transformative” for fair use purposes. Likewise, the fact that the Drake version of the text omits all reference to the Smith recording and thus appears to describe the making of the Drake record, not the Smith record, does not result in a transformative use because in both instances the purpose, i.e., to describe the making of a record, is the same, despite the superficial change in which record JSR is referring to.

Defendants’ other argument for transformative use, however, was “compelling”:

There can be no reasonable dispute that the key phrase of JSR—“Jazz is the only real music that’s gonna last. All that other bullsh*t is here today and gone tomorrow. But jazz is, was and always will be.”—is an unequivocal statement on the primacy of jazz over all other forms of popular music. Defendants use of JSR by contrast transforms Jimmy Smith’s brazen dismissal of all non-jazz music into a statement that “real music,” with no qualifiers, is “the only thing that’s gonna last.” The Defendants’ “purposes in using [the original work] are sharply different from [the original artist’s] goal in creating it.”

Id. at 16, quoting Blanch v. Koons, 467 F.3d 244, 252 (2d Cir. 2006).

Thus the court held the use transformative, and found for the defendants under the first statutory fair use factor. As is often the case, the finding of transformativeness all but guaranteed a favorable result overall. Although the second statutory factor favored plaintiffs because the Smith work was creative (rather than merely factual), this factor is of “particularly limited usefulness” when the defendant has made a transformative use.

The third factor, which looks to the amount and substantiality of the taking, weighed in defendants’ favor because the taking was not excessive in relation to the transformative purpose: “The full extent of the commentary is, in this Court’s view, that many musicians make records in similar ways (e.g. with the help of A&R experts or the stimulating effect of champagne), but that only ‘real’ music—regardless of the creative process or genre—will stand the test of time.” In order to make that point, the court held that the defendants were justified in taking more than just the line about “real music.”

The fourth factor, which looks to market harm, also weighed in defendants’ favor because the use was transformative under the first factor: “the more transformative the secondary use, the less likelihood that the secondary use substitutes for the original.” Id. at 20, quoting Castle Rock Entm’t v. Carol Pub. Grp., 150 F.3d 132, 145 (2d Cir. 1998). The court also observed that the Smith album “targets a sharply different primary market” than the Drake recording, and that plaintiffs never “attempted to establish a market for licensed derivative uses of the JSR composition,” but in fairness, it is difficult to imagine any artist other than Smith doing a persuasive cover version of Smith’s very fact-specific spoken remarks about making a particular record with a particular group of friends.

Conclusion

Jimmy Smith may well have been correct to say that “jazz was, is and always will be.” Certainly the authors of this column hope so (although without subscribing to Smith’s elevation of jazz over all other forms of popular music). But musicians quoting from other musicians is an equally enduring facet of the creative process, in all styles and genres, and the court’s ruling in Estate of Smith—agree with it or not—recognizes that copyright law must sometimes allow all artists the freedom to use the words, music and images of their forebears to express new insights that the original creators never had in mind. It remains to be seen how this general fair use principle may be applied to a case squarely presenting a fair use defense when the use concerns the musical content of jazz rather than a rap on it.

Robert W. Clarida is a partner at Reitler, Kailas & Rosenblatt and author of the treatise Copyright Law Deskbook (BNA). Robert J. Bernstein practices law in The Law Office of Robert J. Bernstein.