Sampling is a popular form of music borrowing, and it is common practice for artists to experiment and create derivative works of an existing song before obtaining a license from the copyright holder. This creative process received significant attention in a copyright infringement dispute brought by singer songwriter, Tracy Chapman, against rapper, Onika Tanya Maraj (professionally known as Nicki Minaj). In September last year, the US District Court granted a partial summary judgment in favour of Minaj, and held that private sampling, even without a license, is a form of artistic experimentation protected by fair use. Notwithstanding this partial ‘win’ for Minaj and experimenting artists alike, the matter was set to go to trial, for several disputed facts remained. However, that trial never took place. The high profile dispute was ultimately settled out of court for $450,000 in December last year.
This article uses the artists’ dispute as a blueprint to discuss copyright infringement, fair use and artistic experimentation.
Between May and August 2018, Minaj made multiple requests to Chapman for permission to release ‘Sorry’, a work by Minaj which incorporated lyrics and melodies from Chapman’s 1988 song, ‘Baby Can I Hold You’. Chapman, an artist known for eluding the sampling world, denied Minaj’s licensing requests. Accordingly, ‘Sorry’ was not featured on Minaj’s 2018 album. Mysteriously however, ‘Sorry’ was subsequently broadcast on a popular New York radio station without Chapman’s permission or Minaj’s alleged input. The song was then made available on the internet. On 22 October 2018, Chapman filed a copyright infringement dispute over Minaj’s unauthorised use of ‘Baby Can I Hold You’. On cross-motions for summary judgment, Chapman argued that Minaj infringed her copyright by creating and distributing a derivative work; Minaj denied these allegations and advanced the ‘fair use’ defence.
Minaj’s submissions raised the novel legal question of whether private sampling in the studio constitutes fair use. The fair use doctrine aims to mitigate the exclusivity of copyright and promote the arts for public good. It allows the re-use of copyrighted works without permission in certain circumstances. In Campbell v. Acuff-Rose Music, Inc, the Court explained that transformative uses ‘lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright’. In determining whether Minaj’s use of Chapman’s copyrighted work was fair use, the Court looked at four things:
- Purpose and character of the use;
- Nature of the copyrighted work;
- Substantiality of what was copied; and,
- Effect of the use upon the potential market for or value of the copyrighted work.
The Court found that, on balance, any copyright infringement liability for Minaj’s work was barred by the fair use doctrine. Two key factors contributed to this finding:
- In relation to the first factor, Minaj’s use was not purely commercial – the initial purpose was artistic experimentation. The Court explained it is common practice for artists to experiment privately with works before seeking licensing from rights holders, and a ruling against Minaj would limit creativity and stifle innovation within the music industry.
- In relation to the fourth factor, there was no evidence that Minaj’s derivative work usurped any potential market for Chapman.
Despite the partial summary judgment in favour of fair use, the issue of whether Minaj had any copyright infringement liability for the song’s distribution was thus left unresolved. But before Chapman’s distribution allegation could proceed to trial, Minaj offered to settle in the amount of $450,000, inclusive of all costs and attorney fees incurred to date. Chapman accepted, and a December judgment was subsequently entered in favor of Chapman.
There are two key takeaways to be gleaned from the Chapman-Minaj copyright saga:
- Some artists have very strict views on how their copyrighted works are used. Sampling clearance at the front end can often be either expensive or impossible, but getting sued for copyright infringement is more burdensome. The risks and costs of a trial should not be downplayed. Minaj’s offer of settlement reflects this reality.
- Artists are free to privately sample and experiment with copyrighted songs without a license. However, the release of derivative works without a license is a very different story.
 510 U.S. 569, 579 (1994).
Thank you Nina Stammbach for contributing to this article.