Drake Successfully Beats "Pound Cake/Paris Morton Music 2" Sampling Lawsuit

Patrice Gainsbourg
Junho 2, 2017

That actually became the basis of the argument from Smith's team, who said that musician wouldn't have approved the sample because he didn't like hip-hop.

However, U.S. District Court Judge William H. Pauley III ruled Drake's sampling of "Jimmy Smith Rap" falls under the "fair use" doctrine. Judge Pauley notes that Smith's original "is an unequivocal statement on the primacy of jazz over all other forms of popular music" while Drake's version turns it into "a statement that 'real music, ' with no qualifiers, is 'the only thing that's gonna last'". They claim he should have just used the "only real music's going to last" bit. "All that other bullshit is here today and gone tomorrow". They went on to argue that if Drake wanted to emphasize the staying power of "real music", (implied by Smith's recording to be jazz, and jazz exclusively), he should have used the one specific line.

The fair use verdict was explained by Pauley as being down to the fact that "Pound Cake/ Paris Morton Music 2" is "sharply different" to Smith's original and "adds something new".

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On Drake's song, it's cut down to say: "Only real music's gonna last", states the sampled portion in Drake's track.

Judge Pauley responds that while it's true that in cases of parody, an average observer needs to identify the target of derision, it's not a universal prerequisite for finding a transformative use. The judge also comments that use of "Jimmy Smith Rap" is transformative regardless of whether the average listener would identify the source and comprehend Drake's goal.

Judge Pauley disagreed, stating the amount used by the 30-year-old was "reasonable". Here's the full opinion, which may get appellate review on whether it also deserves to stand the test of time.

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