20 Jan Nicki Minaj Demonstrates the New Cost of the Sampling of Copyrighted Music without a License
Written by: Aris C. Rotella, Esq.
Fair-use is the first defense of creatives experimenting with copyrighted material. Whether it be an amateur film maker utilizing copyrighted footage in their YouTube video compiling their favorite movies of 2020, or a burgeoning Spotify artist sampling and transforming copyrighted music into something new, these creatives rely on the various Fair-use defenses provided under 17 U.S.C. § 107 in the development of their craft. But when you have deep pockets, like Onika Tanya Maraj – better known as Nicki Minaj – you may still have to pay a pretty penny as a result of sampling music without a license despite arguably being protected by the doctrines of Fair-use.
On December 17, 2020, after being granted a partial summary judgment by the U.S. District Court of the Central District of California, Minaj paid Tracy Chapman, through a Rule 68 Offer of Judgment, the amount of $450,000 along with costs and attorney’s fees for sampling Chapman’s 1988 song, “Baby Can I Hold You”. The copyright infringement suit (which is the topic of this blog post) was originally filed in 2018 following Minaj’s alleged sampling which “violated [Chapman’s] copyright by creating and distributing a derivative work based on the Composition, while Minaj contended that her creation of the remake qualifies as fair use”. As you will see, the claim of distribution is a key factor in how the Minaj-Chapman lawsuit played out.
Despite Minaj’s multiple requests to Chapman for permission to sample her work, Minaj was unable to obtain a license from Chapman after already having completed the song which sampled Chapman’s work. This must have been particularly frustrating for Minaj as she had already completed her song “Sorry”, which featured the unlicensed sampling at issue here.
In response to Minaj’s assertions, the court agreed that Minaj’s usage was protected under 17 U.S.C. § 107, in part because Minaj released an album after “Sorry” was completed which did not include this contentious track. The court found in relation to the first factor, the infringing song’s lack of inclusion in Minaj’s new album was probative of Minaj’s lack of intent to exploit the target work without a license. Further, the court indicated that “artists usually experiment with works before seeking licenses and rights holders typically ask to see a proposed work before approving a license” and opined that “uprooting . . . [these] common practices would limit creativity and stifle innovation within the music industry”. The court found that the third and fourth factors were also favorable of a finding of fair use while the second factor was not (given the involvement of a musical work).
Ultimately the court granted a partial Summary Judgment in Minaj’s favor leaving one issue outstanding and ripe for trial – the issue of distribution. While Minaj never officially released “Sorry”, a DJ with the moniker “DJ Flex” somehow got his hands on a copy of “Sorry” and broadcast same. Issues of fact abounded with this claim and the court indicated a trial would be necessary to resolve Chapman’s distribution claim. Understandably not wanting to undertake the costs and risks associated with trial, Minaj settled with Chapman for $450,000 including costs and legal fees.
The lesson – settlements of this kind may embolden copyright claims against large artists where triable issues of fact may be found. Further, this settlement should also act as a cautionary tale for artists of all ages and experience levels who sample copyrighted works without a license to keep those tracks under lock and key to prevent opening themselves up to copyright infringement and distribution claims. The U.S. Copyright Office provides an on-line Fair Use Index of case annotations demonstrating how courts have applied the doctrine: https://www.copyright.gov/fair-use/