“the purpose and character of the use”

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​In this case, the court deliberated over whether Drake’s version was transformative enough to be considered fair use. “A transformative work is one that uses copyrighted material for a purpose that differs from that for which it was created.” (Markin)

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While the postulates of Fair Use make no reference to the extent of transformation in the remixed work, the Court decided that Drake's use of the copyrighted material was eligible for fair use because it was transformative. Drake transformed the lyrics that were specific to Jazz and turned them into something that is relevant to music as a whole, changing the meaning of the words.

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​While Smith’s music held Jazz as a superior form to all other genres of music, Drake’s “Pound Cake” contradicted that music in itself is superior irrespective of genres. Therefore, in criticizing the elitism of Jazz, Drake had transformed “Pound Cake” to become a satire.

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​Drake reappropriates Smith’s rap and constructs “Pound Cake” by blending, repurposing, and moving out of the Jazz genre of music to hip-hop thereby creating something unique in the process.

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This transformation also supported the third clause of fair use.

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“The amount and substantiality of the portion used in relation to the copyrighted work as a whole”​

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The Court held that in order to truly transform Smith’s song, Drake used the right amount of the former’s work and that it was “necessary to emphasize its own message: that the ultimate attribute of music is its authenticity, not the production process that created it.” (Markin)

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“Pound Cake” satisfied the fourth clause too.

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"The effect of the use upon the potential market for or value of the copyrighted work.”

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Although Drake benefitted commercially from this song, it belongs to the hip-hop and rap music genre, whereas “Jimmy Smith Rap” was about jazz music, rapped by a jazz musician and thus appealed to completely different audiences. Therefore, Drake’s song could not impact Smith’s commercial market.

 

​This was a big win for the music industry in its slew of copyright infringement cases against artists, especially because usually sampling cases focus on the rights to recordings and not the lyrics. Since Drake’s label had the license to the recording and he sampled more than 35 seconds of the copyrighted track, the entire issue depended on a fair use defence.

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​But what does this win mean for sampling artists sharing their work through YouTube?

 

Apparently, not much.