The ruling protects the industry practice of developing a new song based on existing material, and then seeking a license from the original artist prior to release. U.S. District Judge Virginia A. Phillips ruled that Minaj’s experimentation with Chapman’s song constitutes “fair use” and is not copyright infringement.
“Artists usually experiment with works before seeking licenses from rights holders and rights holders typically ask to see a proposed work before approving a license,” the judge wrote. “A ruling uprooting these common practices would limit creativity and stifle innovation within the music industry.”
Minaj created the new song, “Sorry,” with recording artist Nasir Bin Olu in 2017. At the time, she believed it was a remake of a song created by Shelly Thunder, and was surprised to discover later that most of the lyrics and some of the melody came from Chapman’s “Baby Can I Hold You,” which was released on her debut album in 1988.
Minaj’s representatives reached out to Chapman for permission to use the song, but Chapman repeatedly refused. According to her suit, she has a blanket policy against granting such permission. “Sorry” was then dropped from Minaj’s 2018 album, “Queen.”
However, a copy of the unreleased track made its way to DJ Flex, a New York radio DJ who played it on the air. Chapman has accused Minaj of providing DJ Flex with the song, but they both have denied that it came from Minaj or her authorized representatives. Portions of the song later aired on “The Breakfast Club,” and the track became widely available online.
In a motion, Minaj’s attorneys warned that Chapman’s suit “should send a shiver down the spine of those concerned with the entertainment industry.”
They argued that artists need to be free to create something that is based on existing material without worrying that they could be sued for such experimentation once they approach the rights-holder for a license.
“Such free-flowing creativity is important to all recording artists, but particularly in hip hop,” Minaj’s attorneys argued. “With that category of music, a recording artist typically goes into the studio and experiments with dozens of different ‘beats’ or snippets of melodies, before hitting upon a pleasing combination.”
A finding in Chapman’s favor, they argued, “would impose a financial and administrative burden so early in the creative process that all but the most well-funded creators would be forced to abandon their visions at the outset.”
The judge agreed, finding that on balance Minaj was protected by the “fair use” doctrine.
A dispute remains, however, as to whether Minaj infringed on Chapman’s song by sending “Sorry” to DJ Flex. Chapman’s lawyers asked the judge to find that the distribution constituted copyright infringement as a matter of law, but the judge ruled that the dispute would have to go to a jury.
Update, 11:55 a.m. Thursday: Chapman’s attorney, John Gatti, issued a statement saying they expect to prevail once the case goes to trial.
“While we are disappointed by today’s narrow ruling concerning Minaj’s use of Tracy Chapman’s copyrighted work which was broadcast on a major radio station and distributed worldwide over the internet without her permission, we are confident Ms. Chapman will prevail once a jury hears the case in its entirety. For Ms. Chapman, this case has always been and will always be about an artist’s right to control her creations, their use and context. Ms. Chapman will continue to seek the protections provided by the copyright laws to ensure that the works of creators and copyright holders are not commercially exploited without consent.”