In the music industry, “sampling” is far from uncommon. Many great hits draw inspiration and pay homage to songs of the past bringing “oldies-but-goodies” to a new generation. Music producers digitally encode various audio files into the composition of a song and there you have a hit record. Usually, sampling requires “clearance” by the owner of the audio work, yet exceptions exist to prevent the stunting of great music and artistic works. The doctrine of fair use acts as such an exception, allowing various audio works to be crafted, created, and curated. Fair use doctrine purports the unlicensed use of copyright-protected material for criticism, comment, news reporting, teaching, scholarship, and research. (U.S. Copyright Index).
Earlier this summer, music artist Drake found himself on the right-side of the fair use doctrine when a New York federal judge ruled in favor of Drake in a copyright infringement suit. The Court found that Drake was protected by copyright’s fair use doctrine when he sampled a spoken-word jazz track on his 2013 song “Pound Cake.” Drake used 35 seconds of Jimmy Smith’s 1982 “Jimmy Smith Rap” without clearing it with the owner of the material. However, the court cited that the work was used in a transformative manner and District Judge William H. Pauley noted that Drake's purpose in doing so was “sharply different from the original artist’s goals in creating it.”
Courts consider the following four factors when determining fair use:
(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
(2) The nature of the copyrighted work.
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
(4) The effect of the use upon the potential market for or value of the copyrighted work.
Here, the court found that Drake’s use was transformative and was not an infringement on Smith’s song. In Smith’s song, he talked about jazz being the only real music and dismissed all other genres. Judge Pauley found that Drake significantly changed this comment to state that any genre of real music, including hip-hop, has staying power. Drake was able to tread a fine line in that he changed the concept that the original author envisioned. It was brilliant and transformative. In the event that you are unsure, if you are conforming to the rules or transforming them – consult an Attorney.