Friday, December 2, 2022 | Back issues
Courthouse News Service Courthouse News Service

Drake Knocks Out Jazz Legend in Copyright Battle

Jimmy Smith once labeled jazz as “the only real music that’s gonna last,” but a federal copyright action the late musician’s estate brought against the rapper Drake fell apart Tuesday.

MANHATTAN (CN) — Lashing out against the then-emerging hip-hop genre in a 1982 spoken-word album, the late musician Jimmy Smith sneered that “jazz is the only real music that’s gonna last.”

After the Grammy Award-winning rapper Drake sampled lyrics from this song to celebrate his art form, Smith’s estate filed a copyright lawsuit in Manhattan.

Finding that the case lacked staying power Tuesday, however, U.S. District Judge William Pauley III said the Drake track on his “Nothing Was the Same” album transformed Smith’s words enough to qualify for fair use.

Quoting the decades-old verse in full, Pauley called it indisputable that Smith had been making “an unequivocal statement on the primacy of jazz over all other forms of popular music.”

Drake’s song “by contrast, transforms Jimmy Smith’s brazen dismissal of all non-jazz music into a statement that ‘real music,’ with no qualifiers, is ‘the only thing that’s gonna last,’” Pauley wrote in a 21-page opinion.

“Thus, defendants’ ‘purposes in using [the original work] are sharply different from [the original artist’s] goals in creating it,’” the judge added.

Drake’s attorney Christine Lepera applauded the ruling. "We are very pleased with the court's decision which accurately validates defendants' fair use,” Lepera, an attorney with Mitchell Silberberg & Knupp, said in a statement.

Lawyers for Smith’s estate have not returned an email seeking comment.

When Smith died in 2005, the National Endowment of the Arts called him one of the nation’s “Jazz Masters,” the highest honor of its kind bestowed in the United States.

Smith recorded more than 80 albums over the course of a career he launched in the 1950s.

While already a celebrated artist, Smith ad-libbed his angst about the younger generation in the 1982 album “Off the Top." The track “Jimmy Smith Rap” shows him waxing nostalgic about his career while taking swipes at other forms of music.

“All that other bullshit is here today and gone tomorrow,” Smith had intoned, without any background music. “But jazz was, is and always will be.”

Drake ripped a 35-second portion of that monologue for the opening of his song “Pound Cake.”

Demanding $300,000 in royalties and damages, Smith’s estate joined the Los Angeles-based label Hebrew Hustle, which claimed to own the rights to half of “Jimmy Smith Rap,” in bringing a 2014 complaint against Drake, Cash Money, Universal, Sony/ATV, EMI and Warner/Chappell.

During arguments inside Pauley’s courtroom in November, Drake’s attorney said that her client “flipped” the original material.

“They basically insulted the creator,” Lepera said at the time. “That’s what fair use is all about. You’re supposed to be able to insult the creator.”

The Smith estate’s lawyer Anthony Motta insisted at the time that Drake did not put any new spin on the jazz musician’s words.

“If you transfer something without giving it new meaning and purpose, it’s not transformative,” Motta said last year.

This is the position Judge Pauley rejected on Tuesday, and one that Drake’s attorney also rebuked last year.

“At the end of the day, that is the message: Our art is just as good as yours,” said Lepera, who also represents EMI and Warner/Chappell.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.