Second Circuit summarily affirms fair use in "Jimmy Smith Rap" case

Estate of Smith v. Graham, No. 19-28 (2d Cir. Feb. 3, 2020)

The court of appeals affirmed the grant of summary judgment on a fair use defense (I filed an amicus brief on behalf of IP professors in support of defendants). Defendants sampled (with a license for the sound recording) a spoken word peformance known as the “Jimmy Smith Rap” by jazz musician Jimmy Smith for Drake (feat. Jay-Z)’s rap “Pound Cake.” The court of appeals agreed that the four factors supported fair use. First, the use was transformative because JSR was about “the supremacy of jazz to the derogation of other types of music, which—unlike jazz—will not last,” while Pound Cake

sends a counter message—that it is not jazz music that reigns supreme, but rather all “real music,” regardless of genre. Beyond the text of the lyrics themselves, “Pound Cake” situates its sampling of approximately thirty-five seconds of the “Jimmy Smith Rap” at the beginning of an approximately seven-minute-long hip-hop song in which Drake and … Jay-Z[] rap about the greatness and authenticity of their work.

The alteration and additional material argue “that it is not the genre but the authenticity of the music that matters,” thus criticizing JSR’s “jazz-elitism,” giving Pound Cake a different purpose and message.

Nature of the copyrighted work: doesn’t matter much in a transformative use case. Amount: This is not a “no more than necessary” standard; the amount taken here was reasonable. Market effect: there was no evidence of usurped demand for JSR or other negative market effect. Pound Cake, “a piece by a hip-hop artist about rap and hip-hop music, appeals to a much different audience” than JSR, “a piece by a jazz musician on a jazz album about jazz music.” And here’s an interesting statement: “Nor is there evidence of the existence of an active market for ‘Jimmy Smith Rap,’ which is vital for defeating Defendants’ fair use defense.” There are other strands in the caselaw that say otherwise (at least about the “vitality” of such evidence), but this appears to be one way that the court might manage its expanded transformativeness definition—and interestingly, it’s consistent with the Eleventh Circuit’s treatment of market effect in the Georgia State litigation, which also looks to whether the specific work at issue is being licensed.