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Nicki Minaj’s Sorry claims ignore both the facts and the law, reckons Tracy Chapman

By | Published on Wednesday 26 August 2020

Nicki Minaj

Tracy Chapman has hit back in her legal battle with Nicki Minaj, disputing the latter’s recent claims that a win for the former could set a dangerous precedent that would stifle the creativity of all artists. That conclusion, says Chapman, requires ignoring a vital element of the case: the fact Minaj went out of her way to get a track containing an uncleared Chapman sample played on the radio.

Chapman first went legal in October 2018 over a sample that appears on an unreleased Minaj track called ‘Sorry’. That track was originally intended to feature on Minaj’s album ‘Queen’, but was dropped from the LP at the last minute because her label couldn’t clear a sample of Chapman’s ‘Baby Can I Hold You’.

This was all public knowledge, because – in the run-up to the release of ‘Queen’ – Minaj had been tweeting about how her people were struggling to get clearance for a sample from the famously anti-sampling Chapman. This meant that her fans were well aware there was a song called ‘Sorry’, a collaboration with Nas, that was unlikely to get an official release.

All of which meant that, when the unreleased track was then played on Funk Flex’s show on New York radio station Hot 97 FM the day after the album’s release, a lot of people noticed. Some of whom grabbed the track from the broadcast and started circulating it online. All of which led to Chapman’s copyright infringement lawsuit two months later.

Minaj first formally responded to the lawsuit last year, raising some issues about the registration of the ‘Baby Can I Hold You’ copyright in the US and pointing out that ‘Sorry’ had only been played on the radio once, so hadn’t made Minaj any money or caused Chapman any real damage. That response also included the customary fair use defence, something her lawyers then expanded on somewhat in a new legal filing earlier this month.

Chapman’s litigation accuses Minaj of both “creating an illegal derivative work” and “distributing that work”. But the most recent legal filing from the defence focused mainly on the former of those claims, arguing that artists playing around with uncleared samples behind closed doors in the studio is common practice and constitutes fair use under US copyright law. Suggesting otherwise would result in copyright interfering with the creative process, thus stifling music-makers everywhere.

Responding to those arguments this week, the Chapman side say that the defence’s interpretation of the fair use principle is fundamentally flawed, and – while they may be able to back up their arguments with examples of music industry practice – they are simply not backed up by the case law.

But, perhaps more importantly than all that, those arguments also totally ignore the fact that Minaj didn’t just play with an uncleared Chapman sample behind closed doors, she distributed the resulting track to a radio DJ, urging him to play the record.

This week’s legal papers run through the latter events in some detail. They allege that – having been denied a licence to sample Chapman’s song twice – Minaj then got in touch with Funk Flex, aka Aston Taylor, via her verified Instagram account. She told the DJ that ‘Sorry’ would not be getting an official release for licensing reasons, but asked him to nevertheless play the finished track on his radio show.

She then started liaising with Nas and sound engineer Aubry Delaine about getting a final version of ‘Sorry’ mastered and signed off by her collaborator. “The same day she released the album”, the lawsuit then claims, “[Minaj] followed up with Mr Taylor to confirm that he would play the infringing work on his radio show and [to] get his number so she could text him the infringing work”.

“Within 24 hours”, it goes on, “Mr Taylor received the infringing work via text. On 11 Aug 2018, he publicly broadcast it on his number one rated radio show to a huge audience of [Minaj’s] core targeted consumer market. Days later, on 14 Aug 2018, [Minaj] was interviewed by Mr Taylor on his radio show to discuss her album”.

It adds: “Numerous copies of the infringing work were then reposted to the internet causing Ms Chapman to incur significant expenses monitoring these improper postings and issuing DMCA takedown notices. To this day, copies of the infringing work remain on the internet despite various efforts by Ms Chapman to have them taken down”.

Therefore, while the courts could involve themselves in a big debate over the extent to which the fair use principle allows artists to make use of other artist’s work without permission behind closed doors, that is basically a hypothetical debate. Because in this case Minaj didn’t just do that, she carried on making her track even after a licence had been declined and then got a radio DJ to make it public.

It was odd that Minaj’s most recent legal filing pretty much glossed over the radio airing of ‘Sorry’ that is fundamental to this case. Though there is a parallel between the arguments presented in that legal filing – regarding Minaj’s use of uncleared samples in the studio – and the subsequent distribution of her record to a radio DJ. In that music industry practice and copyright law aren’t always in sync.

On the former point, Chapman’s lawyers argue that, while the creative process Minaj’s team described in their recent legal filing may be commonplace, especially in the hip hop community, that doesn’t mean that’s what US copyright law says about fair use.

As for the radio airing of the uncleared track, there is often an assumption in the world of hip hop that copyright concerns mainly apply to commercial releases, not promo content. After all, the industry routinely turns a blind eye to the unlicensed mixtapes hip hop artists put out for promotional purposes.

So, from a hip hop perspective, copyright issues mainly kick in when you commercially release something. But Chapman’s team are right to say that, from a copyright law perspective, copyright issues can definitely kick in as soon as something is simply made public.

It remains to be seen how Minaj now responds, both to the Chapman side’s allegations regarding the radio play of ‘Sorry’, and the accompanying copyright debates.