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Music Experimentation and distribution questioned in the copyright battle between Nicki Minaj and Tracy Chapman

#fairuse #infringement #nickiminaj #tracychapman emusicentertainment Oct 04, 2020

What does this mean for the Indie Artist?

Many artists are influenced by the singer/songwriters they admire.  Artists who work in RnB, Hip Hop, Dance and Pop work with drum, digital or other percussive “beats” as core elements to inspire them to create new music.  Copyright law gives the creators of original music; songwriters and musicians exclusive rights to their works.

Baby Can I Hold You Live

What is Sampling?

Music is the reuse of a portion (or sample) of a sound recording placed in another recording. Producers may sample music from another artist and then modify it to make it their own. Generally, when sampling others’ work, you need to obtain legal permission from the copyright owners of the sampled music, and this is called “sample clearance”.  In the 90’s there were a series of lawsuits over hip hop songs using samples.  This led Federal courts to decisions that clearly stated that the original copyright owner must give written permission and the original copyright owner must receive credit for the sample to be used in final track that is commercially released.

If you have an unauthorized sample in your recording, you can be sued for copyright infringement. A few ways to try to protect yourself are: 1) have producers sign legal agreements which include language guarding against their use of illegal samples in the music; and 2) another tool you may want to use, is to Shazam the song to see if recognizes a pre-existing sound recording.

What is Interpolation?

Interpolation is when an artist may re-record elements of the music such as the melody or the lyrics to create the effect of sampling the music without using the master recording.  This is sometimes used when an artist or producer can’t get approval to clear a sample, or waiting for clearance may be taking too long, or cost too much money,

While this may appear to be a cheaper alternative to sampling, the artist or label must purchase a mechanical license and give credit to the original composer in order to release the song commercially.  As the copyright owner is entitled to receive all the income from publishing the artist who re-records will only be able to collect royalties from the distribution of the sound recording (i.e., streams and sales).  Since it costs a lot of money to market and promote music, in addition to having to pay the mechanical fees for interpolation it may not be financially sound for artists or Indie labels to take this route.  

 What is “Fair Use”?

Fair use is an exemption to U.S. copyright law.    It allows the copyrighted work to be used in certain circumstances without permission or payment for a limited purpose, such as educational use, to comment upon, criticize or for a parody.

If an infringement suit is brought, and the party being sued claims fair use (i.e., Nicki Minaj) the court will weigh the benefits and the risks to the original copyright owner.  The courts want to protect copyright owners, but they also want to encourage creativity. The courts are more likely to find that educational uses that are noncommercial are fair.  However, the courts have also allowed some commercial, use when they believe, the new work is transformative. 

Here are some factors to court looks at to determine if the sample falls within “fair use”:

Nature of the copyrighted work: 

  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole: courts will look at the quantity and quality of the copyrighted material that was used. You may believe that, you can are legally permitted to use 10, 15 or 30 seconds of music without copyright obligation to get permission or pay a fee. That is not accurate, especially for music being used commercially on TV or radio. Copyright law is complex, and the courts look at many factors including the portion of the work you sampled and what value the sample you used has to the original work prior to making a determination.
  • Nature of the copyrighted work:  Whether you have transformed the copyrighted music and made it your own. While the courts want to encourage creative expression, music itself is imaginative, so the courts are less likely to support a claim of fair use.
  • Effect of your use of the copyrighted work’s value in the market: The court will consider whether your use hurts the current market value of the original work.


What is Copyright Infringement?

According to the US Copyright office generally, “copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner”.

What led to Tracy Chapman suing Nicki Minaj for copyright infringement?

Nicki Minaj worked on a song titled “Sorry” with Nasir Bin Olu in 2017.  At that time she thought she was remaking a song created by Shelly Thunder.  However, she later came to find out, that in fact, the melody and lyrics belonging to Tracy Chapman’s “Baby Can I Hold You”, which was released on her first album in 1988.

Nicki’s team asked Chapman for permission, but Chapman refused.  At that point, the new song created by Minaj “Sorry” was dropped from her 2018 album “Queen” prior to being released.  This would have been the end of the story however the song was played by DJ Funk Flex on air in NY on the radio.  Thereafter, the Breakfast club also played the song which led to the song be widely available on-line.  Minaj and her team denied they supplied the song to DJ Funk Flex.

Chapman then sued Minaj for copyright infringement.  Minaj’s team argued that it was “Fair Use” for Minaj to create “Baby Can I Hold You”.  The judge in part, agreed with Minaj’s team, he held that “Artists usually experiment with works before seeking licenses from rights holders and rights holders typically ask to see a proposed work before approving a license,”. He went on to state a “ruling uprooting these common practices would limit creativity and stifle innovation within the music industry”.  So it may look like Minaj is in the clear, but the case did not end there.

The judge also held that distribution of the work “Sorry” would have to be presented to a jury, to determine whether Minaj or her representatives had culpability in allowing the song to reach DJ Funk Flex.  That public air play and further distribution is at the heart of the case now.  Chapman and her team believe that her legal rights were infringed and are fighting to protect Chapman’s rights.  John Gatti, her attorney, stated this case is to “ensure that the works of creators and copyright holders are not commercially exploited without consent”.  We will have to wait and see what the jury determines. 

Remember, each case is fact specific, and courts rely on many factors including prior copyright decisions.  This means there is no formula to ensure your use of a copyrighted work can be released commercially without permission.  So it is best when using a sample to get it cleared or steer clear.



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