By: Mimi Lynham

The Second Circuit’s ruling on the claim against Drake’s song “Pound Cake” could officially close the door on future copyright infringement allegations in the music industry. On February 3, 2020, the Second Circuit ruled that Drake’s song “Pound Cake” was free of copyright infringement.[1]

The Estate of James Oscar Smith brought a lawsuit against the rapper, his label companies, and publishers in 2014.[2]The Estate claimed that Drake engaged in copyright infringement.[3]They argued that Drake did not have a proper license to incorporate a thirty-five second clip from Smith’s jazz track “Jimmy Smith Rap” into “Pound Cake.”[4]The district court held that the defendants’ use of the clip was allowed under the fair use doctrine.[5]The fair use doctrine evaluates (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market.[6]The district court stated the use of the clip, “add[ed] something new, with a further purpose or different character, altering the first [work] with new expression, meaning, or message.”[7]

The Second Circuit agreed with the district court’s holding and further reasoned that according to the first factor of the fair use doctrine, Drake’s use of the clip was transformative.[8]It was a thirty-five second clip of jazz music being used in a seven-minute long hip-hop song.[9]The Second Circuit then claimed that because the clip was transformative, it passed the second factor regarding the nature of the work.[10]Under the third factor, the court determined that the length of the clip taken and used in “Pound Cake” was reasonable.[11]The court stated that while Drake borrowed the language from Mr. Smith’s song, this was necessary to relay “Pound Cake’s” own message.[12]Lastly, under the fourth factor of the fair use doctrine, the court determined “Pound Cake” would not affect the economic value of “Jimmy Smith Rap.”[13]

The recent ruling places doubt on the future of copyright infringement claims. If an artist can use a direct clip lasting thirty-five seconds from one genre of music in another, what qualifies as infringement? For example, in Brown v. Netflix, Inc., Amazon, Netflix, and Apple are currently being sued for the use of a children’s song in a 2017 burlesque film that the streaming conglomerates are distributing.[14]But, with the Second Circuit’s recent ruling, it appears that the District Court Judge for the Southern District of New York may not have a choice but to rule in the defendants’ favor pursuant to this precedent.[15]The song in this case, “Fish Sticks n’ Tater Tots” was intended for children listeners.[16]In the film, “Burlesque: Heart of the Glitter Tribe,” it is reaching a different audience.

After applying the Second Circuit’s ruling and reasoning under the fair use doctrine, the court may hold that using the song in a burlesque film is a transformative use. It meets both the first and second fair use factors since it is altering the original song by adding it to a different context in order for it to have a new meaning, message, or expression. Under the third factor, the length may be called into question since the whole song is included, but the court could hold it is reasonable and necessary in order to emphasize the film’s own message. Lastly, under the fourth factor, using the song in the film most likely does not affect its economic value. It does not appear that using the song in a burlesque film will have a negative effect on the regular “Fish Sticks n’ Tater Tots” consumer. This use will presumably not affect whether they buy the song or listen to it. The song is reaching two separate audiences in completely different ways. 

Another recent lawsuit was filed against Daniel Hernandez or, as some may know him, Tekashi 6ix9ine.[17] The plaintiff, Seth Gordon, claims that Tekashi 6ix9ine, his songwriter, label companies, and music distribution and publishing company (collectively “the defendants”) used and exploited the plaintiff’s work for profit without proper license.[18] The plaintiff had created a “drop” or a “short clip of music that is played on the radio.”[19] A musician usually creates a drop to affiliate and promote themselves on certain radio stations.[20] The drop was nine seconds long.[21] The defendants used this in Tekashi 6ix9ine’s song “Stoopid.”[22]

With the ruling inBrown v. Netflix, Inc., the question now is whether the plaintiff has a case with the precedent being set by the Second Circuit. The use of the drop was likely transformative since it was used to add something new to the beginning of Tekashi 6ix9ine’s song. Since the uses of the drop are drastically different, it adds a completely new meaning to “Stoopid,” thus likely meeting the Second Circuit’s evaluation under the first two factors of the fair use doctrine. The length of the clip is only nine seconds in comparison to the thirty-five second clip in “Pound Cake.”[23] Though the whole drop is used, it could be argued under the third factor that it was reasonable and necessary to emphasize “Stoopid’s” own message. Lastly, the use of the drop in Tekashi 6ix9ine’s song likely does not affect the original economic value. 

             Though courts will still have to grapple with the definition of transformative and determining what constitutes fair use, the Second Circuit has opened the door for many more artists to engage in what was once clearly copyright infringement. 

[1]Estate of Smith v. Graham, No. 19-28, 2020 WL 522013, at *1 (2d Cir. Feb. 3, 2020).

[2]Compl., Estate of Smith v. Cash Money Records, Inc., No. 1:14-cv-02703-WHP (S.D.N.Y. Apr. 16, 2014).

[3] 8-10. 


[5]Estate of Smith v. Cash Money Records, 253 F. Supp. 3d 737, 752 (S.D.N.Y. 2017). 

[6]17 U.S.C. § 107.

[7]Estate of Smith v. Cash Money Records, 253 F. Supp. 3d at 749 (citing Campbell v. Acuff-Rosie Music, Inc., 510 U.S. 569, 579 (1994)). 

[8]Graham, 2020 WL 522013, at *1. 


[10] *2. 




[14]Compl. at 1-2, Brown v. Netflix, Inc., No. 1:19-cv-01507-ER (S.D.N.Y. Feb. 20, 2019). 

[15]Tiffany Hu, Drake Win is Death Knell for IP Suit, Streaming Giants Say, Law360 (Feb. 5, 2020),

[16]Compl. at 3, Brown v. Netflix, Inc., No. 1:19-cv-01507-ER (S.D.N.Y. Feb. 20, 2019).

[17]Compl. at 1, Gordon v. Chambers, No. 1:20-cv-00696 (E.D.N.Y. Feb. 7, 2020).

[18]Id. at 4-5. 

[19]Id. at 3. 


[21]Id. at 4. 

[22]Id. at 6. 

[23]Compl. at 6, Estate of Smith v. Cash Money Records, Inc., No. 1:14-cv-02703-WHP (S.D.N.Y. Apr. 16, 2014).

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