Shapiro Arato Prevails in Sampling Lawsuit
Shapiro Arato has represented various defendants against copyright infringement claims over the song “Pound Cake / Paris Morton Music 2” by the artist Drake (and featuring Jay Z). The plaintiffs’ claims arose over a sample of “Jimmy Smith Rap,” a spoken-word recording by the late-jazz artist of the same name, that appears in “Pound Cake” with some of the original words altered. The plaintiffs contended that the sample infringed their alleged copyright in the composition underlying the recording. Shapiro Arato argued that the use of that composition constituted fair use.
On May 30, 2017, Judge William H. Pauley III of the United States District Court for the Southern District of New York rejected the plaintiffs’ request for summary judgment, granted summary judgment to our clients, and dismissed the copyright infringement claims against them. Judge Pauley agreed with our arguments that the “Jimmy Smith Rap” sample in “Pound Cake” was protected fair use. In particular, Judge Pauley held that by altering the words of the original recording to create a radically different message, the use of “Jimmy Smith Rap” in “Pound Cake” “adds something new” and is “transformative.” In the original recording, Jimmy Smith proclaimed, “Jazz is the only real music that’s gonna last. All that other bullsh*t is here today and gone tomorrow.” But “Pound Cake” used the sample to affirm the legitimacy of hip-hop, not jazz: “Only real music is gonna last, all that other bullsh*t is here today and gone tomorrow.” As Judge Pauley discerned, “Pound Cake” transformed Jimmy Smith’s “unequivocal statement on the primacy of jazz over all other forms of popular music” into “a statement that ‘real music,’ with no qualifiers, is ‘the only thing that’s gonna last.’” Weighing this and other factors, the Court concluded that the sample was fair use and so, as a matter of law, it did not infringe the plaintiffs’ alleged copyright.