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Rap’ is one about the supremacy of jazz to the derogation of other types In the words of the Second Circuit: “The message of the ‘Jimmy Smith Sample was fair, though the first factor is probably most important andīasically, the judges conclude that Drake’s use of Smith’s words wasįair use because he is countering the opinions the jazz musician aired Three of those factors support the claim that Drake’s use of the Smith Second Circuit considered the four factors that US copyright rules stateĬan make an unlicensed use of copyright work fair use. 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Literary work contained within that recording, ie the separate copyright But after ‘Pound Cake’ was released the jazz musician’sĮstate went legal on the basis that no licence had been sought for the “jazz is the only real music that’s going to last, all that otherīullshit is here today and gone tomorrow, but jazz is, was and alwaysĭrake’s label did actually get a licence to sample the Smith The musician introduces that record and, in the process, declares that ‘Jimmy Smith Rap’ that appears on his 1982 album ‘Off The Top’. The recording that was sampled was a short spoken word bit called the Sampled audio without licence does not constitute copyright Jazz musician Jimmy Smith is fair use, and therefore the use of that The higher court confirms that Drake’s lengthy sample of a recording by Ruling regarding a sample dispute over Drake’s 2013 track ‘Pound Cake’. 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