Use of Sample in Rap song Held Fair Use by Second Circuit

Estate of James Smith v. Graham, No. 19-28, 2020 WL 522013 (2d Cir. Feb. 3, 2020).

On February 3, 2020, the Second Circuit issued a summary order affirming a finding by the Southern District of New York that Drake and Jay-Z’s sampling of the jazz song “Jimmy Smith Rap” in their song “Pound Cake” was fair use. The court found three of the four fair use factors weighed in favor of fair use. As to factor one, the court found that the use was transformative because “Pound Cake” sent a message that was counter to that of “Jimmy Smith Rap,” and “Pound Cake” is a seven-minute song featuring only thirty-five seconds of “Jimmy Smith Rap” in its beginning. As to factor two, the court stated that it is of “limited usefulness” where the use is transformative.  The court also found the third factor weighed in favor of fair use because the amount used by Drake and Jay-Z was reasonable in sending their transformative message. Finally, the court deemed that “Pound Cake” did not usurp the market for “Jimmy Smith Rap” because there is no evidence that an active market for it exists. As a result, the sampling was fair use.