by Alvin Benjamin Carter III

In the Estate of Smith v. Graham, the Second Circuit Court of Appeals affirmed the United States District Court for the Southern District of New York’s grant of summary judgment for Defendants Aubrey Drake Graham (a.k.a. Drake), Cash Money Records, and various record label imprints and publishing companies in its de novo review of the lower court’s decision which found the use of Plaintiff’s “Jimmy Smith Rap” in Defendant’s “Pound Cake” to be fair use. No. 19-28, 2020 WL 522013, at *2 (2d Cir. Feb. 3, 2020) (Summary Order). While summary orders are not precedential, this is an encouraging decision for Hiphop artists who utilize sampling in their music because the analysis of the first of the four fair use factors outlined in the Copyright Act of 1976 (the “Copyright Act”) highlights the Second Circuit’s ability to evaluate fair use in context of Hiphop’s long standing sampling tradition. Id.

Section 107 of the Copyright Act provides four factors that are analyzed individually and weighted together when determining if the use of copyrighted work is considered a fair use. TCA Television Corp. v. McCollum, 839 F.3d 168, 178-179 (2d Cir. 2016). The four factors are:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107 (2020).

The Second Circuit’s fair use analysis in Estate of Smith v. Graham is fairly concise, but the treatment of the first factor indicates an understanding of how and why artists and producers often sample a particular work. In reviewing the first factor, the court performed what appears to be a close reading of the lyrics of each song, which ultimately convinced the court that Drake’s usage was transformative. 

In making this determination, the court noted that “The message of the ‘Jimmy Smith Rap’ is one about the supremacy of jazz to the derogation of other types of music, which—unlike jazz—will not last. On the other hand, ‘Pound Cake’ sends a counter message—that it is not jazz music that reigns supreme, but rather all ‘real music,’ regardless of genre.” 2020 WL 522013 (C.A.2 (N.Y.)), 1. Then, the court further explains that only 35 seconds of “Jimmy Smith Rap” is used in “Pound Cake” which is a seven minute song featuring Drake and Jay-Z rapping “about their greatness and authenticity of their work” in a manner that “criticizes the jazz-elitism that the ‘Jimmy Smith Rap’ espouses.” In this instance the lyrics to “Pound Cake” told the story the artists wanted to tell, and it also told the court why they were telling the story in a particular manner– through transformative sampling. The Second Circuit’s lyrical analysis and understanding is indicative of the ability, and a degree of willingness, to appreciate the transformative value in Hiphop related works for reasons that appear to be in line with the artist’s intent.

This is an important development because sampling is the sonic foundation of Hiphop music, and the intentionality behind sampling is what often contextualizes the transformative fair use.

The Estate of Smith is not alone in caselaw that is helpful for understanding sampling culture and the law. VMG Salsoul, L.L.C. v. Ciccone, from the Ninth Circuit Court of Appeals, decide a case where the plaintiff claimed that the producer of the song “Vogue,” copied a 0.23-second segment of horns from an earlier song, known as “Love Break.” The court acknowledged the applicability of the de minimis exception with respect to sound recordings and determined that the horn sample in Madonna’s song was de minimis. 

These cases prove hopeful for Hiphop culture and sample based music even though there still is not a clear path forward for artists and producers who do not clear their samples. 824 F.3d 871 (9th Cir. 2016). (The Sixth Circuit held to the the opposite in Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).

Still, the fact that courts are reading into the conceptual layers of works and parsing out the various textures of fair use in a way that lets artists be heard is far from de minimis.

The views expressed herein are solely the views of the author and do not represent the views of Brown Rudnick LLP, those parties represented by the author, or those parties represented by Brown Rudnick LLP. Specific legal advice depends on the facts of each situation and may vary from situation to situation. Information contained in this article is not intended to constitute legal advice by the author or the lawyers at Brown Rudnick LLP, and it does not establish a lawyer-client relationship.  

by Dan Booth, Partner at Booth Sweet LLP, a Commercial Arts & Technology law firm located in Cambridge, MA.

It’s routine in copyright debates to hear appropriation artists depicted as heartless vampires who feed off their sources and thoughtlessly toss the sullied victims aside. I’ve experienced the opposite. Fair use is routinely practiced by artists who pay savvy, creative tribute to those they admire, exploring and building from their inspirations. For example, Lauren LoPrete’s Tumblr page This Charming Charlie discovered a missing link between Peanuts and the Smiths, and became an Internet phenomenon. Heedless of fair use, Universal Music threatened it with DMCA takedown notices. At first Lauren considered giving up, announcing on her page, “I know it’s over.” But she decided to strike back punk-rock style, so we went public. She posted our counter-notice on her page the day we served it, making plain why her work is a paragon of fair use. 

The Internet rallied to her support with Smiths fans from Morrissey discussion boards to the LA Times pointing out the obvious: a band that hadn’t existed in decades could only benefit from this sort of attention. The people at Universal Music backed away silently, realizing they’d gone after the wrong person. (Again.) The site got even more famous and even Morrissey embraced it, profoundly gratifying for a lifelong Smiths fan like Lauren:

This is where the ethics of her methods become clear. She’d never profited from the site, but people started clamoring for This Charming Charlie merchandise; a friend of hers even found a This Charming Charlie knockoff shirt for sale in South Korea. Lauren seriously pondered both the legal and ethical aspects. I counseled her by asking, “What Would Ian Mackaye Do?”

The popular view of fair use is one sort of punk rock approach: take what you want until you get caught. Ask forgiveness, not permission. But that’s a mindset that assumes fair use isn’t really a right – it’s something you only get away with. I’m suggesting a more rigorously ethical Ian MacKaye approach: do unto others. One way to look at fair use is to put yourself in the source’s shoes and ask whether the source you’re building off would consider it fair. In this case, we actually know that Morrissey considers your site better than fair. But would he consider it fair to profit off his appreciation? Or would he feel like his generosity had been taken advantage of? Asking permission is the conscientious way. It’s punk, just not gutter punk. 

Lauren took that to heart. Cool and thoughtful as always (yes, I’m her lawyer so I’m partial, but I consider those observations objectively true), she declined to go to market, deciding to stay true to the original nature of her project. This sort of fair use is a creative collaboration with the past, practiced by artists rigorously aware of the lines between an author’s rights and the public interest, and using those lines as their medium and message. That’s not vampirism; it’s rejuvenation.

Dan Booth is an attorney and founding partner at Booth Sweet LLP, in Cambridge, MA.  Booth Sweet LLP is aCommercial Arts & Technologylaw firm.  They serve as counsel for the creative industries, handling clients’ day-to-day business law issues, including intellectual property protection and licensing. From copyright to contracts, trademarks to trade secrets, the law plays a critical part in the creative industries.  Dan is also an officer and member of the Board of Directors of Passim, a nonprofit arts organization and an active member of Volunteer Lawyers for the Arts.

by Christopher David DeLaurenti. Christopher is a sound artist, improvisor, and phonographer based in Virginia. His sound work encompasses field recordings, electroacoustic and acousmatic music, text-sound scores, free-improvised low-tech electronics, and compositions for acoustic instruments. His latest work No Sound Is Stolen: Fair Use Music 1983-2013 was just released today, Wednesday February 26^th, 2013.

Although I’ve used snippets and substantial segments of other people’s music in my own work for decades, I have always avoided terms like plunderphonics, sampling, mashups, and sound collage.

Sonically, the names sometimes fit, but I felt instinctively that I needed another term: Fair Use Music.

It took me over 20 years to decide what to call this stuff. Discovering John Oswald’s four track EP, Plunderphonics, at the King County Library in 1994 spurred me to finish Three Camels for Orchestra. Yet calling what I do plunderphonics doesn’t feel right, despite my affection for the term and love of Oswald’s music. In my heart, I know I’m not stealing anything.

I hate the word sampling; the connotation of superficial, fly-by listening belies the profound challenge – and seduction – of sampling: To make what someone else has recorded yours. Sampling also denotes repeatedly triggering the same sound from a keyboard, pad, or predefined loop, something I would never, ever do. I love it when others do it well (namely The Bran Flakes, People Like Us, Escape Mechanism, Negativland, Steev Hise, Wobbly, Evolution Control Committee, Paul Dolden, and others) but it’s not for me. I prefer to hew and hone fragments (with debts owed to the amazing Noah Creshevsky and John Wall with a kinship to the Randomized Control Trials of Martin Bland) as in Three Camels or subject a song to convolution and other DSP and end up with “Sylvian’s Wood.”

I almost adopted “sound collage.”  Visual artists offer ample and inspiring precedents. Max Ernst’s Woman with 100 Heads is a masterpiece of precise construction. Hannah Hoch and Romare Bearden are giants of the 20th century art. Alas, collage still suggests disparate fragments rather than a single entity – casual rather than causal order. The comparison has limits: Some of my edits are (to my ears) invisible, others blunt and obvious. Visual collages seldom capture the continuum from evident assemblage to seamless entity.

Several years ago I settled on Fair Use Music, which denotes how I use others’ music both legally and aesthetically. Copyright has gone too far and lasted too long. Elastic and ever-changing copyright terms (14+14 years in 1790, now 95/120 years or life+70 years as of 1998) remind us that such rights remain arbitrary with no inherent basis in artistic creation. Laws merely a century or two old and superannuated by interminable extensions should not impede anyone’s experience of – or eagerness to transform – music.

When I create, I hope to reveal how I listen. Since you stand a greater chance of already having heard a commercial (more or less) popular recording, my fair use music illustrates how I listen more transparently than anything else I make.

There is no money in making this music; every time I sit in front of a tape deck or laptop, I, like most artists, metaphorically open a wallet or purse and set dollar bills aflame. Burn baby, burn! I make my work in defiance of capitalism at an irretrievable fiscal loss. But if everything was priced fairly, everything would cost nothing – just like the music below.

- Adapted from the liner notes to the album No Sound Is Stolen: Fair Use Music 1983-2013 which has been released today, Wednesday February 26^th, 2013.