Reversing meaning is transformative in use of composition, court rules

Smith v. Cash Money Records, Inc., No. 14-cv-02703 (S.D.N.Y. May 30, 2017)

In 1982, Jimmy Smith recorded a mostly instrumental album released by Elektra/Asylum Records titled Off the Top.  The last track is a spoken-word recording titled “Jimmy Smith Rap” (JSR):

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 bullshit 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.

In 2013, defendants released an album titled Nothing Was the Same (the “Album”) by Aubrey Drake Graham (Drake). The last song on the album is “Pound Cake/Paris Morton Music 2,” whose opening samples about 35 seconds of JSR:

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 bullshit is here today and gone tomorrow.

Some words were rearranged or deleted, but no words were added. Defendants licensed the JSR recording, but not the composition, whose copyright was not registered with the Copyright Office or any PRO before the Album’s release. Smith's estate argued that it would not have granted a license for the composition because Jimmy Smith “wasn’t a fan of hip hop.”

The Estate registered the composition copyright thirty-one years after initial publication, after the sampling; it was not evidence that the copyright was valid, and there was a disputed issue of fact on authorship.  The lyrics of JSR indicated that it was a behind-the-scenes recollection of the recording of Off the Top. The statement on the Off the Top album cover explains that it was recorded with “no charts, music format or nothing . . . just playing what we felt . . . off the top of our heads,” but that went only to the recording process, not to the authorship of the rap.  

Defendants weren’t entitled to summary judgment on substantial similarity, even if the sampled portion was mostly clichés. The anti-dissection rule/total concept and feel rule meant that the standard was “a subjective assessment better suited for a jury than a court.”

However, the fair use analysis went a lot better for defendants.  The court rejected two variants: first, that the omission of references to Off the Top made the words applicable to the process of making Drake’s album, and second, that the addition of background music, rearrangement of some words, and contextualization in a seven-minute hip hop track was transformative.  But those things just made the use a derivative work rather than a pure copy. The use of the words to describe Drake’s recording process was a use for the “same” purpose as the original.

However, by editing the recording from “Jazz is the only real music that’s gonna last” to “Only real music is gonna last,” “Drake transformed Jimmy Smith’s dismissive comment into a statement on the relevance and staying power of ‘real music,’ regardless of genre.”  The original statement was “an unequivocal statement on the primacy of jazz over all other forms of popular music.” Defendants’ use transformed this “brazen dismissal of all non-jazz music” into a statement that “real music,” not limited to jazz, is “the only thing that’s gonna last.”  This was new meaning and a sharply different purpose.  Plaintiffs argued that the use couldn’t be transformative because the copied portions weren’t readily identifiable as JSR and because the track didn’t identify Jimmy Smith.  But this wasn’t a parody case, where recognizability was important; it was more like Blanch v. Koons:

The critical question is “how the work in question appears to the reasonable observer,” not the quality or accessibility of the commentary. The average listener of Pound Cake would understand the sampled portions of JSR as a statement that, regardless of how a song was made or how one might classify it, “only real music is gonna last.” 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.

Factor two: who cares?  Factor 3: 35 seconds of a one-minute track was okay.  Fair use doesn’t require taking no more than necessary; the amount was reasonable in proportion to defendants’ needs. The lines describing the recording of Off the Top “serve to drive the point [on the importance of ‘real’ music] home.”  That is, the use makes the point that “many musicians make records in similar ways (e.g. with the help of A&R experts or the stimulating effects of champagne), but … only ‘real’ music—regardless of creative process or genre—will stand the test of time.”  

Factor 4: There was no evidence of an usurpation of the market for JSR or derivative works.  As “a spoken-word criticism of non-jazz music at the end of an improvisational jazz album,” JSR targeted a “sharply different primary market” than Pound Cake, a hip-hop track. Plaintiffs never attempted to establish a market for licensed derivative uses until defendants used JSR.  Thus, it would be unreasonable to conclude that defendants took “sufficiently significant portions of the original as to make available a significantly competing substitute.”