253 F. Supp. 3d 737
S.D.N.Y.2017Background
- Jimmy Smith recorded a 1982 album Off the Top; final track "Jimmy Smith Rap" (JSR) is a ~1-minute spoken-word track whose authorship is disputed.
- The Estate of Jimmy Smith and Hebrew Hustle claim composition copyright in JSR; Estate registered the composition in 2013 (decades after publication) after learning of sampling.
- Drake’s 2013 album Nothing Was the Same includes Pound Cake, whose opening samples ~35 seconds of JSR (verbatim or slightly rearranged). Defendants licensed the sound recording but not the composition.
- Hebrew Hustle notified the Estate and later registered the composition; Plaintiffs sued for copyright infringement.
- District court considered cross-motions for summary judgment and found factual disputes over authorship and protectable copying, but resolved fair use in Defendants’ favor as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ownership of copyright (authorship of JSR) | Estate: Jimmy Smith authored JSR; registration and ancillary evidence support ownership | Defs: No reliable evidence Smith wrote JSR; late registration and lack of contemporaneous authorship attribution raise doubt | Court: Genuine dispute of material fact exists as to authorship; summary judgment denied on ownership issue |
| Substantial similarity/copying | Estate: Pound Cake copied protectable, original elements of JSR (literal copying of text) | Defs: Copied material is largely unprotectable (cliché/factual) or trivial to the original; substantial similarity is lacking | Court: Whether copied material is protectable and substantial is triable; summary judgment inappropriate on infringement merits |
| Applicability of fair use defense | Estate: Use is commercial sampling, not transformative; weighs against fair use | Defs: Use is transformative (alters message), limited in amount, and does not harm market for JSR | Court: Fair use applies—use is transformative, amount reasonable, and no market harm; Defs prevail on fair use |
| Summary judgment outcome | Estate: Entitled to summary judgment on infringement | Defs: Entitled to summary judgment on fair use; infringement claims barred | Court: Plaintiffs’ summary judgment denied; Defendants’ summary judgment granted on fair use; case dismissed |
Key Cases Cited
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (originality standard for copyright)
- Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (transformativeness central to fair use analysis)
- Harper & Row Publ’rs, Inc. v. Nation Enters., 471 U.S. 539 (1985) (market effect is critical fair use factor)
- Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57 (2d Cir. 2010) (tests for substantial similarity)
- Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006) (using copyrighted material as "raw material" can be transformative)
- Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015) (fair use promotes public knowledge; transformative use reduces substitution risk)
- Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013) (transformative use standard in visual art contexts)
- Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) (transformative use can mitigate weight of other factors)
- Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2004) (fragmented literal similarity and qualitative importance of copied elements)
- TufAmerica, Inc. v. Diamond, 968 F. Supp. 2d 588 (S.D.N.Y. 2013) (analysis of fragmented literal similarity in sampling cases)