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Judge Rules Against Jazz Musician’s Estate in Drake Sampling Suit

A federal judge ruled Tuesday that Drake did not violate copyright law when he sampled a spoken word track from a 1982 jazz record.

The estate of musician Jimmy Smith filed suit in 2014, alleging that Drake had violated its copyright to “Jimmy Smith Rap,” from Smith’s 1982 album “Off the Top.” On the original track, Smith relates a bit about the recording of the album — “We had champagne in the studio, of course, complements of the company” — and stands up for jazz as an artform — “Jazz is the only real music that’s gonna last.”

Drake sampled the recording on his third album, “Nothing Was the Same,” on the track “Pound Cake.” The label, Cash Money Records, retained a licensing company to obtain the appropriate permissions. The company obtained the license to the recording of “Jimmy Smith Rap,” but not to the composition.

Smith died in 2005. His estate sued, saying it would not have granted a license to the composition because “Jimmy wasn’t a fan of rap.”

But on Tuesday, Judge William H. Pauley dismissed the suit, saying the sampling was entitled to protection as “fair use.” On the Drake recording, Smith’s reference to jazz was deleted, and his words were edited to say “Only real music is gonna last.” Pauley found that this change was sufficiently transformative to grant the claim of fair use.

“Drake transformed Jimmy Smith’s dismissive comment into a statement on the relevance and staying power of ‘real music,’ regardless of genre,” Pauley wrote. “Because this purpose is ‘sharply different’ from Jimmy Smith’s purpose in creating the original track, Defendants’ use is transformative and this factor weighs in favor of a finding of fair use.”

Cash Money and Drake were represented by Christine Lepera of Mitchell, Silberberg and Knupp.

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