MANHATTAN (CN) — Continuing a decades-old feud between rappers and jazz musicians, lawyers for Drake and the late Jimmy Smith duked it Friday over a sample of a spoken-word album insulting the younger generation.
Bestowed the highest honors in his field, Smith has been called a "Jazz Master" by the National Endowment of the Arts. He recorded more than 80 albums over the course of a career that spanned from the 1950s to his death on Feb. 5, 2005.
Sometime in the middle of that career, the jazz giant insulted the then-nascent art form of the younger generation.
"Only real music is gonna last. All the other bullshit is here today and gone tomorrow," Smith said plainly in "Jimmy Smith Rap," a 65-second, spoken-word track from the 1982 album "Off the Top."
Grammy Award-winning Drake threw the jazz icon's words back at him in 2013 on a 35-second sample appearing on "Nothing Was the Same," which BET later awarded Album of the Year.
Smith's estate brought a lawsuit the next year against Drake and several of his labels, including Cash Money, Universal, Sony/ATV, EMI and Warner/Chappell.
The Los Angeles-based label Hebrew Hustle, which says it owns half of Smith's track, is a co-plaintiff in the lawsuit.
At an hour-long hearing before a Manhattan federal judge on Friday afternoon, a lawyer for Smith's estate tried to convince that this sample was a copyright violation.
"If you transfer something without giving it new meaning and purpose, it's not transformative," attorney Anthony Motta said.
But Drake's attorney Christine Lepera, from the Manhattan-based firm Mitchell Silberberg & Knupp, said that it was clear how her client "flipped" the original material.
"They basically insulted the creator," said Lepera, who also represents labels EMI and Warner/Chappell. "That's what fair use is all about. You're supposed to be able to insult the creator."
"At the end of the day, that is the message: Our art is just as good as yours," Lepera added.
Hearing arguments for summary judgment Friday, U.S. District Judge William Pauley III noted that Drake's listeners might not have known the sample was meant as a parody.
Indeed, Motta, the attorney for the Smith estate, joked that he would have trouble spotting the small-print attribution of the sample on Drake's album with a magnifying glass and his reading glasses combined.
But Drake's attorney replied that it does not matter whether listeners understood the spoof, as the musical parody was protected under the precedent established by the landmark case of Campbell v. Acuff-Rose Music, better known as the "Pretty Woman" case.
In skewering Roy Orbison's classic, and paving the way for modern rap music, hip-hop giants 2 Live Crew sparked a bitterly contested copyright battle that ended in a 1994 Supreme Court decision.
Pauley noted that Smith's minor track is much less known than Orbison's is.
For Lepera, that fact was both irrelevant and undermined by Smith's lawsuit touting the musician's career.
"It's not obscure," she said. "It's not unknown."
But more to the point, she added: "It doesn't have to be a cultural treasure in order to be transformative."
At least for now, the longtime grudge remains unsettled. Judge Pauley ended the roughly hour-long arguments without a ruling.
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