warning me please the court i'm robert clara don i'm representing the plaintiff the pellets the state of james asker smith at al i'm seeking reversal of the grant of summary judgment below i would like to reserve two minutes f rebuttal if the court would like some factual background i'll be happy to spend a minute on that otherwise we can get straight into why we believe the district court committed reversible error here bruce yes all right then i'll i'll just outline the facts that will be particularly relevant to the discussion that is a copyright infringement case this plane planets work at issue is sixty seven seconds long with commercially released is an expressive work it's creative it's registered with the copyright office the district court correctly found that it's a work of protectable authorship in two thousand and thirteen the defendant professionally known as drake copied large amounts of that text onto a commercial recording the release called poundcake it's about thirty is about thirty five seconds long it's about fifty four percent of the original work drake had nothing it simply consists of the words that jimmy smith spoke there was music at it in the background wasn't there there was additional as to the sound that there's actually not just one message in the in the jimmy smith rap there's more than one message if you actually look at the lyrics and and there in the the joint append if the j a to sixty four dollars and i understand the defendants will have a chart of that there are several topics that jimmy smith discusses and he has as we discussed in our briefs a lot of it consists of reminiscing about oh back in the day we used to do it this way and i got together with my friend so on and so forth that meaning isn't changed at all it's just used wholesale for its own expressive value and the closing of the jimmy smith rap talks about we hope you enjoy the record we had a ball making it that's not changed at all what changes in the middle is that there's a portion of it that left very briefly it's under ten seconds where jimmy smith says that jazz is the only real music that's going to last the heart no it's not the jimmy smith rap is not the gettysburg address it's not all driving to that one point it's just sort of a collection of miscellaneous recollections and observations by jimmy smith there's not one message and i think the district court below made it reversible error by assuming that to be the case why has jimmy smith have to take all sorts of reminiscences about making drake have to take all these reminiscences about making the record what does that have to do with with whether jazz is or is not the best form of music basically jimmy smits it x y and z and drake said x and y left out he doesn't mention hip hop he doesn't mention jazz at all if this drake version were put on a jazz record it might well be referring to jazz merely putting it in the context of hip hop record as this court said in a television is not enough to make a transformative use there as you may remember there was an abbott and costello record  comedy routine that was put into the context of a play that was a pretty dark play as the court observed but the court said merely putting this into a context where it may take on some different resonance is not enough to make a transformative use that  we're bound to consider sufficient to overcome that the extent of the taking and a smaller taking here might have been a fair use but the test always is the supreme court says in campbell is whether the can transformative purpose will reasonably be music it was simply the supreme court said in campbell to avoid the drudgery of working up something fresh it was interesting it was colorful it was entertaining it was put on the drink record for that purpose a reasonable jury could conclude i'll say that and there's no evidence in the record about what drinks purpose was and there's no evidence in the record that anybody who ever heard the drake version thought it was a critique about jazz or a critique about the relative merits of different kinds of music but yet somehow the district court found only jazz is real music and real music will prevail he doesn't say what only real music is he offers no opinion about that he merely subtract he doesn't as learned hand said nine hundred and thirty six sheldon the metro goldwyn mayor no plagiarist can excuse the wrong never going to know that it's a critique the listener is just going to hear that drake's eight minute sounds like a nice an accurate statement that real music will last how is the listener ever going to know this is like roger's become with a string of puppies photo how does anybody looking at that photo going to know that it's a reference to this other published photo out there it's just a photo of a sculpture and you really have to we've sat outside of parity and it's parody then you need to know what has been commented on but in other contexts where the transformer diffuse  and there is comment generally there can be an firmness i think one might be able to from the sequence of music and the development of the text in the overall work that there is a comment going on which is a case that you know recently decided by the circuit and took a large step away from prior case law on this and and dca distinguishes carry us as we don't have to get into whether kerry was right or wrong because we can just look at what happened and carry you the works that were said to be barely recognizable where the planets work was barely recognizable in the later work those were fair use as a matter of law but d c i specifically says here the planets work is not barely recogniz think that is the kind of the custom in the music industry is that you get a license for the composition you get a license for the recording whenever you doing example the fact that a license was procured means that someone was trying to to get the rights they needed to to have to release the record  fair use but what what the they hired a a clearance agency to go get the lights since they needed for the samples on this record and that clearance agent should have done what mr hacker did he said oh i think jimmy smith i'll go find that estate and  surely could have done that and the fact that they didn't doesn't doesn't give anybody innocent infringer defense they did search and found no no registration correct correct but the copyright attaches upon creation of the work in a with the use here in the three piece of what we've called the jimmy smith rap and as the court has recognized there was a licensed recording of the performance of the words  extent that helps maybe the reason i'm doing this is because i would like to address the issues that my colleague has raised with respect to both what has been altered and what has been taken as i think the court has noted what mr graham did here is very significant it took jimmy smits absolute disdain and hate for popular music which is admitted in the record there is no dispute that the heart of his rap was to say jazz is the only real music that's going to last the rest is garbage the tone in which he speaks these words is not really consistent with your tone right now i mean  are clear and obviously we have a very short piece here and i'll get into the license issue in a minute but we have a very short piece here and you can see that there's significant amounts that were not taken whatsoever and then deal with the actual off the top recording what you have is a transposition down to the bottom of the heart of it which is the jazz quotation and it's changed to now say real music is what's going to last and meaning not just an exclusionary so here's here's where i'm going with that your honor when you're talking about the yellow portions here the good god almighty back in the old days and you're talking about having a ball if you were to simply just have all real music is going to last not in the context of talking about it's anyone whose real music is their recall process not just the jazz greats and the point also which i think is to some extent obscured and there's a lot of disdain in the in the brief with respect to the pound cake song as a whole but what you have in the pancake song are a numerable references to what's known as hip hop royalty there's a litany between jay z and drake back and forth about all of the various people in that genre who have contributed to the fame and they're actually reveling in the balance of that rap recording in that genre and the celebration of it so we submit that the alteration is sufficient to have created a new meaning and message of this work under the st factor of the heart of it which is the jazz point it's a critique it is actually at the core of everything that all of the courts have said it's distinguishable from a common you know i know we've decided many on summary judgment but there are elements of this that make me think the jury might be better suited will instruct the jury could sort this out look at the whole recording look at the full text  and then decide that your honor and the i think the question would be whether there's any issue disputed fact here and there is not any issue disputed fact with respect to what has been taken what has been altered and the meaning of the going when you are looking at the to work side by side and assuming you have the reasonable perception as the cases say with respect to what the alteration means which is you have an exclusionary message this is jazz is the only thing that matters and you have the inclusionary matter message about real music and then you look at the balance is a reasonably relate it to that message and since it's about the creation of real music it can be discerned from a side by side comparison and it can be discerned from the face of it on the context and i think the other thing that factors significantly into this st factor issue is the th factor issue and the market harm and going back to the issue of the license that we've been hearing about and how it is something that should have been looked at and done well the reality of the situation is there's admissions in the record undisputed that the short less than two minute spoken w do not get licensed it was not even licensed on off the top it has never been monetized it has never been of any value so when you look at the th factor what you have here is an effort to make a litigation market out of something that has had no economic value current past or potentially in the future there's no derivative use for this in the sample context because you do not license it mr hacker the hebrew hustle principal wh embark on this pathway to go find the heirs track him down sign him up so he could monetize this has admitted he had no interest in publishing it he didn't do anything with it to sell it he only su the th factor your honor with all due respect talks about the potential market for the work and there is no potential market for this work and all the talent have done is attempt to create a sample market generally but you have to focus on the work specifically in the th factor and i believe with all due respect not a generalized sampling market because clearly there's sample market out there then i come back to the nd in the rd factors which although actual substantiality in value of the take the part of the taking that's not the part the part that talks about good god almighty like we had a ball these are largely cliches they are  not in any way something like analogous to the salinger letters or of a hugely creative expression and they are factual in nature to some extent so it's a thing copyright at best so i think the nd factor significantly weighs on our side as well in the rd factor i did address to some extent but i'm happy to go through it i think the balance of the taking if it was simply just a intro to the rest of the cake the message wouldn't be conveyed a significantly is taking the words out of the mouth of the author who did disdain and honor of in jazz have him explain about how fabulous this recording process then say it's only about jazz but it's not only about jazz and the point is is very poignant because you're dealing with two different african american cultures in the music business the st and foremost being the elder statements in the jazz world who had it's admitted this disdain for this type of music would not have ever licensed it even if it was asked but ultimately never had to be licensed as they've admitted it could be used without money it's never made money it was not even license for money on the original reporting so you take the words out of the mouth of the advocate for jazz only who hates hip hop and other music and you have him say the opposite if that's not a fair use critique i'm hard pressed to say what could be because it does show who it's taken from the credits or on the album this is not something obscure that's not locatable like in the rodgers versus coons case where the poppy was just you know basically done and so what you have is you have this very specific body of law that's developed and it's poignant because it talks about altering something original with a new meaning in a message that's what happened here it is a very different message it's the opposite message it's like no not just music not only jazz music is you know our music is not garbage either and we have the same process so you're saying your process is the sterling fabulous thing where you do it you do it as you want to you just go in the studio and you do it well so do we and you basically have taken you know taken a situation where you know he has extracted only the components of this very short duration and yes in conclusion your honor respectfully request that decision be affirmed on the ground that this is a fair use under all factors and similarly we suggest that to the extent the course inclined we have an equitable stoppable argument as well which we think is very compelling under the facts of this case and there's not a situation where you know the question is looking at once again the way this was created in terms of the copyright that never existed before or about sampling for has your court written you know your honor and i think it's very important to distinguish this from  recorded sample or anything similar to the extent we're dealing with something that and this is something i do want to mention this because there's a confused discussion about section one hundred and fifteen in the pell and supreme section one hundred and five deals only with  dramatic musical works a compulsory license of non dramatic musical works they have admitted in the statement of undisputed facts is not there's no music here jimmy smith pieces it's not a music work it can't be deemed subject to a compulsory license and certainly can't even if it was a musical work which it's not because it's derivative and it's excerpted you can't the eleven dollars statute applies to covers so for example if i wanted to go on record or song that had been previously recorded and do my own version i can get a compulsory license because there's music and there's words in it and it's very different here which also compels us to the point of how this was concocted to be copyrightable work of value when it's not and it's not your typical sample and there's there's no evidence in the record whatsoever of any use or value beyond this case  yes just briefly address some of the issues that my colleague just spoke to st of all the credits are completely and informative on this record this is in the joint appendix three hundred and twenty four and the way this particular jimmy smith rap is treated in the credits is very different and very inconsistent with the way other sample licenses are treated in this recording in the credits for this recording and particularly it says after this  featuring samples from jimmy smith from rap produced under license etc it says speech sample provided by christian rich and others i have no idea who that is has nothing to do with jimmy smith and what that speech sample credit is doing next to the jimmy smith i have no idea no one reading this credit allying with know who jimmy smith was also unlike the credit above it which gives a credit line is performed by a goulding the jimmy smith rap doesn't have it as performed by anywhere so the person reading this is just going to get a credit for the sample of the sound recording which was licensed but they're not going to get any credit at all for jimmy smith or his performance or what the speech sample listeners credit provides no information whatsoever also there is a disputed quest fact question particularly about what is the heart of this jimmy smith rap certainly that's a question i think reasonable jurors could differ about that is a disputed fact question also it's important to look at the fact that there is no record support whatsoever for the contention that somehow this describes drake's recording process there's no factual record whatsoever about drake's recording process we don't know how much of this pertains or doesn't pertain to drinks recording process well that's that's her argument that's well actually i think that's a disputed fact question two i think it's quite unusual that james smith had champagne from the label in the recording studio i don't think that's very often how it worked for him but in any event that that whole passage about the recording even if it does apply to you can't just take it because it also expresses something that's true about you that's just avoiding the drudgery of working up something fresh that's not what the supreme court allows under campbell also i think there's a fact question about how believable is this explanation about why drake took all this copying when he only is referring to the to the point about jazz to the extent he was referring to anything having to do and no one listening to this jimmy smith rap would know anywhere but good god almighty back in the old days yeah ok those are cliches take them out you still have a very large extensive amount of copying here so the cliches really don't change the analysis at all it goes from maybe fifty four percent of a copy to you know