Last year, in an article titled “Can You Sample Legally Without a License? Maybe,” I wrote about the 2016 Madonna music sampling case in which the 9th Circuit Court of Appeals found that Madonna’s use of a sample from The Salsoul Orchestra’s song “Ooh, I Love It (Love Break)” in her 1990 hit “Vogue” was de minimis or trivial, and not copyright infringement. Therefore, no license was required.
I also highlighted the opposing viewpoint from the 6th Circuit Court of Appeals that ruled that in order to sample, you must get license.
In the end, my recommendation was that you should always get a license.
Now, as if the case law wasn’t murky enough, enter the recent ruling in the Drake music sampling case (Estate of James Oscar Smith, et ano., v Cash Money Records, Inc, et al.) coming out of the U.S. District Court for the Southern District of New York.
In this case, the estate of jazz musician James Oscar Smith (better known as Jimmy Smith) sued Drake and others for copyright infringement, alleging that Drake’s song “Pound Cake/Paris Morton Music 2” (from his 2013 album Nothing Was the Same) infringed on the musician’s spoken-word recording, “Jimmy Smith Rap.” Drake had sampled about 35 seconds of the one-minute track and lifted the words almost verbatim, with only minor deletions.
The Copyright Act permits the fair use of copyrighted work for the purpose of criticism, comment, news reporting, teaching, scholarship or research. When used in this manner, the use is not considered an infringement of copyright.
In ruling in favor of summary judgement for Drake, the court examined the fair use factors and found that Drake’s purpose in using the sample was “ ‘sharply different’ from Jimmy Smith’s purpose in creating the original.” Thus, the use was transformative, and weighs in favor of finding fair use.
Further, the court found that sampling 35 seconds of the one-minute track was “reasonable in proportion to the needs of the intended transformative use.” Hence, Drake use was fair and did not infringe on the estate’s copyright.
Fair use is a defense to copyright infringement, and there a several factors the court considers in determining whether the use is fair. But this current ruling just muddies the waters on sampling. Now we have three different court ruling on sampling: always get a license (6th Circuit); sampling a little is de minimis (9th Circuit); sampling could be transformative and rise to the level of fair use (Southern District of New York).
This leaves little guidance for an artist who wants to use a sample. My recommendation remains the same as before. If you want to use a sample, get all the necessary licenses — i.e., licenses for the recording and the underlying composition. It is always cheaper to secure a license than to defend against a copyright infringement suit.
Eldonie S. Mason Esq. is the founding member/attorney and arbitrator at Mason Firm, LLC, in East Brunswick. Visit masonfirmllc.com.