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The effect of the use upon the potential market for or value of the copyrighted work.The amount and substantiality of the portion used in relation to the copyrighted work as a whole and.The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.The Copyright Act sets out four factors that the courts are instructed to evaluate when an argument of fair use is presented. This exception is set out in the Copyright Act. Fair use is an exception to the general rule. In general, copyright law prohibits others from using a musician’s or an artist’s work without permission. Drake defended the lawsuit by arguing that his sampling was “fair use.” Eventually, the Estate of Jimmy Smith filed a lawsuit against Drake. When the song came out, the heirs of Jimmy Smith claimed copyright infringement. Toward the beginning of the song, Drake uses a 35-second sampling of a 1980s spoken-word jazz recording by Jimmy Smith. The recent opinion from the Second Circuit involved the 2013 song by Drake (with Jay-Z) called “Pound Cake.” “Pound Cake” is about seven minutes long. Sampling is a technique that is common and popular in modern rap and hip hop music. Often, the older music, lyrics, or audio is played in the background while the newer music or rapping is played over it. The federal Second Circuit Court of Appeals, here in New York, recently issued an opinion that is instructive on the legal question of “music sampling.” Sampling is using a small segment, the “sample,” of an older sound recording in a new song.