Tracy Chapman recently sued Nicki Minaj (Onika Tanya Maraj) for copyright infringement, for the unauthorized use and distribution of a Chapman composition that Minaj had sampled. Minaj won a partial summary judgement motion over Chapman, on fair use grounds. Minaj successfully argued that although she had used unlicensed music to create a song that she had intended to include in a commercial release, that use was defensible as fair, experimental use.
At first glance, it would seem that Minaj scored a victory for freedom of expression. For those inclined to see it, Minaj even managed to extend fair use protection to better reflect the way music is made today. On closer inspection, however, Minaj’s fair use argument was straightforward and fit very well within the existing framework of the fair use test. Furthermore, the decision provides another good reminder that a fair use defense can be made for commercially motivated adaptation. Just because Minaj wanted to release her song Sorry commercially, she wasn’t precluded from arguing that fair use protected her unauthorized adaptation.
U.S. District Court for the Central District of California Judge Virginia A. Phillips dispensed with the infringement allegations around the creation of the track on fair use grounds, writing that “a ruling uprooting these common practices would limit creativity and stifle innovation within the music industry.” Questions remain, however, as to whether Minaj infringed on Chapman’s distribution right, as a result of the unclear route that it took to get to a radio DJ.
Facts of the Case
On Aug. 11, 2018, DJ Flex, of Hot 97 Radio in New York, tweeted that he would play a track he received from Minaj that wasn’t on her album. That evening, on his radio show, DJ Flex played Sorry, a track created by Minaj featuring the rapper Nas, which included samples of Chapman’s original composition Baby Can I Hold You. Almost immediately, unauthorized copies of Sorry spread over the internet.
In the months leading up to that day, Minaj had repeatedly reached out to Chapman for permission to include the track on her upcoming album, “Queen.” Chapman refused, and Minaj told Nas that Sorry would not be licensed and would not be included on the album. Nevertheless, the file played by DJ Flex on Aug. 11, was the same track, Sorry, that included the unauthorized sample of Chapman’s original work. The source of the file is disputed, as is the question of whether the file was the same as a mastered mix Minaj had ordered, seemingly with the intention of radio play, since she had requested both explicit and clean versions.
In short, the facts are disputed about how Sorry came to be played on the radio, and whether it came from Minaj. The outcome of this dispute, currently pending before Judge Phillips, will determine whether Minaj violated Chapman’s distribution right under copyright law.
Fair Commercial Use: Not an Oxymoron
Minaj did not dispute her use of Chapman’s work in her new track. She defended it, because she prepared the track as an experiment, provided it as part of licensing discussions with Chapman, and did not include it on her album. Chapman, for her part, argued that fair use was inapplicable, because the track was created for a commercial purpose. The court agreed with Minaj that “the use was not commercial even though there was some incidental commercial aspect of the work.” Instead, the intended use of the work was experimental, because Minaj had told Nas that she wanted to “experiment with Sorry to see where the project could go” and she “never intended to exploit the work without a license.”
Commercial purpose is not a categorical block to a fair use defense to copyright infringement. Instead, the “degree to which the new user exploits the copyright for commercial gain—as opposed to incidental use as part of a commercial enterprise—affects the weight” afforded to commercial nature as a factor in the four-factor balancing test, writes Judge Phillips, citing to Campbell v. Acuff-Rose Music, Inc. The first of the four factors, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” is often assumed to exclude commercial purpose from any fair use defense. In common practice, however, “artists usually experiment with works before seeking licenses from rights holders.”
Chapman herself, before approving a license, has requested samples “to see how [her work] will be used.” Experimental use for a commercial purpose can be defensible under fair use when balanced with the other four factors, as was done in this case. Because Minaj could not obtain a license from Chapman, she did not include it on her “Queen” album.
Using Fair Use Carefully
Minaj succeeded in defending her sampling of Chapman’s original work under fair use. She experimented with the work and did not intend to exploit the work without a license. What remains is to establish whether Minaj was the source of the file that found its way to DJ Flex, who played it on the radio. Despite evidence that she asked DJ Flex to play it, she says she “changed her mind” and did not provide the file. The outcome of factual analysis will determine whether Minaj is liable to Chapman for infringement of her distribution right.
As a final takeaway for artists is that remixing and sampling at home or in private, even for sale or license, can be covered by fair use. Even so, artists should be as careful as Minaj was before sharing their creations.
“A ruling uprooting these common practices would limit creativity and stifle innovation within the music industry,” as Judge Phillips writes, is great recognition of the way music is made, but the trial isn’t over yet. Minaj could still end up feeling “sorry.”