Nicki Minaj has just suffered a major legal loss to Tracy Chapman in a copyright infringement dispute. What's more, the case could have a huge impact on the way music is written and how artists borrow from one another. In translation, it means artists can be punished for music that has been leaked.
Per the New York Times, Minaj has agreed to pay $450,000 for sampling Chapman’s 1988 song “Baby Can I Hold You” in her leaked track “Sorry.” The legal battle has been going on since 2018 and serves as important case law on the doctrine "fair use," the ruling harms the practice of developing a new song based on existing material before requesting a license.
In 2017, Minaj recorded a track "Sorry" that interpolated the Chapman song by lifting lyrics from the original. Minaj and her representatives reached out to get permission for the song but Chapman repeatedly refused. Ultimately "Sorry" was dropped from the tracklist for the rapper's 2018 album Queen.
While "Sorry" didn't end up on Queen, things went south when the track found its way on to the radio. Minaj allegedly hadn't sanctioned the leak when New York’s DJ Funkmaster Flex broadcast it on air. The track subsequently began circulating online, at which point Chapman filed the lawsuit.
Not only did Chapman claim that Minaj shared the song deliberately, but she also said the rapper shouldn't have been allowed to make the unauthorized song in the first place, even as a demo. This is the key point of disagreement in the case. Meanwhile, Minaj's attorneys argued she was allowed to create the song under an exception to copyright law known as "fair use."
That is how things usually work in the industry; artists create something with someone else’s work and then run it by the original artist. Chapman's argument demands that this very process should be prohibited. "The relatively novel legal question here is whether it is a fair use for somebody to make copies of someone else’s work in order to send it to the author and say, ‘Look, listen to it. Isn’t it great? Won’t you license it to me?'" said Eugene Volokh, a professor at UCLA School of Law.
"Can you imagine what the world would look like if every artist who goes into the studio has to get a license merely to experiment with someone’s music?" said Pete Ross, one of Minaj’s attorneys.
John Gatti, one of Chapman’s attorneys, argued to dismiss the doctrine of fair use, saying copyright law is not for the artists doing the copying, it should protect the original creator. “What the law protects is that Tracy Chapman, in this case, has the absolute right to control how her intellectual property is performed, presented, and exploited,” Gatti said. “The argument on the other side is really turning established copyright law on its head.”
Minaj’s attorneys warned that Chapman’s argument could fundamentally change the musical landscape for the worse and "should send a shiver down the spine of those concerned with the entertainment industry." A finding in Chapman’s favor, they argued, "would impose a financial and administrative burden so early in the creative process that all but the most well-funded creators would be forced to abandon their visions at the outset."
Artists usually experiment with works before seeking licenses from copyright holders, that's how experimentation works. So Minaj's interpolation of Chapman's song should have constituted fair use. This ruling fundamentally uproots artists' creative practice in the music industry, stifling innovation.
While Chapman celebrated her win as affirming "that artists’ rights are protected by law and should be respected by other artists," this isn't exactly the case. Instead, the ruling demonstrates to artists that their right to create music on existing material is not protected, in fact, they could be sued for their creative process alone.