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IP/Entertainment Case Law Updates

Tracy Chapman v. Onika Tanya Maraj

District court holds that Nicki Minaj’s sampling of Tracy Chapman song “Baby Can I Hold You” in “Sorry,” Minaj’s 2018 collaboration with Nas, was fair use and that material issues of fact exist regarding Minaj’s alleged unauthorized distribution of “Sorry” to radio station. 

Songwriter Tracy Chapman sued Onika Tanya Maraj, a hip-hop recording artist who goes by the name “Nicki Minaj,” alleging that Minaj infringed on Chapman’s copyright in her 1982 song “Baby Can I Hold You” by sampling the song in a 2018 remake of a song called “Sorry.” The song was a collaboration with fellow hip-hop recording artist Nasir Bin Olu, who goes by the name “Nas.” At the time that Minaj agreed to work with Nas on the collaboration, Minaj believed that “Sorry” was created by an artist named Shelly Thunder, but later discovered that “Sorry” was a cover of Chapman’s “Baby Can I Hold You.” Minaj’s representatives reached out to Chapman to obtain a license to release the song after it had been recorded, and when Chapman refused to grant permission, “Sorry” was removed from Minaj’s album “Queen.” The track was leaked later to New York City hip-hop radio station Hot 97, where DJ Funkmaster Flex promoted the debut of the song by posting on his Twitter and Instagram accounts that Minaj “gave” him “something … not on her album.”

On cross-motions for partial summary judgment, the court granted Minaj’s and denied Chapman’s.

On Chapman’s motion for summary judgment on her claim that Minaj infringed on her exclusive right of distribution by transmitting (or directing the transmission of) “Sorry” to DJ Flex without Chapman’s permission, the court found a number of factual disputes. Minaj argued that she cannot be held liable for DJ Flex’s playing of the song, denying that she sent the track or directed the sending of the track to the radio station. She also pointed to several disputed issues of fact which precluded summary judgment, including the time frame in which DJ Flex received the text message containing the song; whether DJ Flex’s social media posts actually indicated that Minaj had in fact sent the song; and whether DJ Flex received a mastered or “mixed” copy of “Sorry,” which would be relevant on the issue of who sent the track to him. The court held that these factual disputes, as well as denials by Minaj, DJ Flex and others that Minaj had transmitted or directed the transmission of the song, raised triable issues of material fact that required resolution by a jury.

In her motion for partial summary judgment, Minaj argued fair use, asserting that the purpose of creating of the song was to experiment and to create something that could be submitted to Chapman as an example of how Minaj intended to use the original work. Applying the four fair use factors—the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work—the court found that three factors weighed in favor of Minaj, while one weighed in Chapman’s favor.

With respect to the first factor, Chapman argued that the purpose for creating the song was commercial—pointing to Minaj’s concession that she needed clearance to include the song in her album, and her efforts to clear the song after it had been created. The court rejected this argument, explaining that the initial purpose for use of Chapman’s song was to experiment with it, and that Minaj never intended to (and in fact did not) exploit “Baby Can I Hold You” without a license. The court found that the incidental commercial nature related to the creation of the song, which might be used in an album, was counterbalanced by the low degree to which Minaj exploited the song, such that the first factor weighed in favor of fair use.

As to the second factor, the court found that the status of the work at issue as a musical composition—the type of work that is at the core of copyright’s protective purpose—weighed against a finding of fair use.

The court found that the third factor weighed in favor of fair use; although “Sorry” incorporates most of Chapman’s lyrics and parts of the vocal melodies from “Baby Can I Hold You,” Minaj used no more than necessary to show Chapman how Minaj intended to use her copyrighted work in Minaj’s collaboration.

The court found that the final factor also weighed in favor of Minaj, as there was no evidence that Minaj’s song usurped any potential market for Chapman. The court rejected Chapman’s argument that market harm may be presumed because the work was created for commercial gain, observing that there was only incidental commercial purpose behind the song—which Minaj did not attempt to exploit. The court found that the creation of the song for private experimentation and to secure a license from Chapman has no impact on the commercial market for Chapman’s original work.

Ultimately, after finding that three of the four fair use factors favored Minaj, the court granted Minaj’s motion for partial summary judgment on the issue of infringement, finding that Minaj’s remake of “Sorry” was fair use.

Summary prepared by David Grossman and David Forrest