Drake’s legal team convinced a New York federal judge that the rapper’s song “Pound Cake/Paris Morton Music 2,” featuring Jay Z from his 2013 album “Nothing Was the Same,” fairly sampled a 1982 spoken-word recording, “Jimmy Smith Rap,” thereby, enabling him to escape liability for copyright infringement.
The lyrics in debate come from jazz musician Jimmy Smith. “Jazz is the only real music that’s gonna last,” states the lyrics. “All that other bullshit is here today and gone tomorrow. But jazz was, is and always will be.”
In Drake’s song, the words are cut down to say: “Only real music’s gonna last. All that other bullshit is here today and gone tomorrow.”
According to Smith’s team, the late musician would not have approved the sample because he did not like hip-hop, and yet, U.S. District Judge William Pauley III was not persuaded. In his 21-page opinion, Pauley held that the Drake track transformed Smith’s words enough to qualify for fair use.
“Far from being extraneous to ‘Pound Cake’s’ statement on the importance of ‘real’ music, Defendants’ use of the lines describing the recording of Off the Top serve to drive the point home,” Pauley wrote. “The full extent of the commentary is, in this Court’s view, that many musicians make records in similar ways (e.g. with the help of A&R experts or the stimulating effects of champagne), but that only ‘real’ music — regardless of creative process or genre — will stand the test of time.”
Smith’s estate initially filed suit against Drake, Cash Money, Universal, Sony/ATV, EMI and Warner/Chappell in April 2014, demanding $300,000 in royalties and damages. Los Angeles-based label Hebrew Hustle, also joined the suit, claiming rights to half of “Jimmy Smith Rap.”
“At the end of the day, that is the message: Our art is just as good as yours,” Drake’s counsel Christine Lepera, argued.