“A ruling uprooting these common practices [of artistic experimentation prior to licensing] would limit creativity and stifle innovation within the music industry. This is contrary to Copyright Law’s primary goal of promoting the arts for the public good.” – Judge Virginia A. Phillips
In a ruling earlier this month, U.S. District Judge Virginia A. Phillips of the Central District of California granted partial summary judgment in favor of Onika Tanya Maraj, who performs rap under the stage name Nicki Minaj, resolving a copyright infringement dispute originally filed in 2018 by singer-songwriter Tracy Chapman over Minaj’s unauthorized use of Chapman’s 1988 single “Baby Can I Hold You.” In ruling that Minaj had established a fair use defense to Chapman’s copyright infringement claims, Judge Phillips affirmed the important role of experimenting with copyrighted works prior to licensing as a common practice within the recording industry.
Judge Phillips Finds Fair Use Despite Radio Premiere of Minaj’s “Sorry”
Chapman’s infringement allegations focus on Minaj’s work in 2017 with rapper Nas to create a musical composition based on a remake of a song that Minaj originally believed was created by Shelly Thunder but was actually Chapman’s “Baby Can I Hold You.” As the undisputed facts portion of the ruling notes, it is customary practice in the recording industry to create derivative works of a song prior to entering licensing discussions for that song. This practice allows the rights holders of the original works, many of whom are artists themselves, to review proposed derivative works before agreeing to license. The undisputed facts also state that Chapman herself engages in this type of practice for licensing her own works.
After Minaj discovered that the work she and Nas were creating, titled “Sorry,” was actually based on Chapman’s single, Minaj’s representatives began approaching Chapman during the summer of 2018 to seek her authorization for using the new work on Minaj’s studio album Queen, which was released in August 2018. Chapman denied all licensing requests. Although the track didn’t appear on Queen, Minaj engaged in communications with New York City-based radio DJ Funkmaster Flex prior to the unauthorized track being played on DJ Flex’s radio show on August 11, 2018.
In response to Chapman’s copyright suit in October 2018, which argued that Minaj had violated Chapman’s exclusive rights to create derivative works of “Baby Can I Hold You,” Minaj had argued that her creation of the track “Sorry” was a fair use of Chapman’s earlier single. In assessing the fair use factors in 17 U.S.C. § 107, Judge Phillips found that, while the nature of Chapman’s copyrighted musical composition weighed against a finding of fair use, Minaj met her burden of eliminating any genuine issues of material fact to show fair use. In making this finding, Judge Phillips noted that Minaj’s use of Chapman’s single was not purely commercial, that Minaj used no more of Chapman’s work than required to show Chapman the intended reuse of the work, and that Chapman raised no evidence that Minaj’s derivative work usurped any potential market.
Artistic Experimentation Provides Public Benefit Weighing in Favor of Fair Use
In analyzing the purpose and character of Minaj’s use, Judge Phillips’ ruling affirmed the importance of artistic experimentation as a common practice within the recording industry that provides a public benefit. Citing to the U.S. Court of Appeals for the Ninth Circuit’s 1992 decision in Sega Enterprises Ltd. v. Accolade, Inc., Judge Phillips notes that courts should consider the public benefit resulting from a particular use, including intangible benefits that may run from the public interest being served by the challenged use. The type of artistic experimentation in which Minaj engaged to produce the derivative of Chapman’s single is a customary practice in the recording industry “because rights holders often request copies of new works during licensing discussions and prospective licensees usually include their proposed derivative works with their initial licensing requests.” The facts on record showed that Chapman herself has engaged in the practice of requesting new works before approving licenses. As Judge Phillips found, “[a] ruling uprooting these common practices would limit creativity and stifle innovation within the music industry,” a result that would run “contrary to [the] Copyright Law’s primary goal of promoting the arts for the public good.” Minaj’s exclusion of the work from her album also led Judge Phillips to find that her use was not purely commercial.
Analysis of the outcome of the case prior to Judge Phillips’ ruling focused on concerns about the potential chilling impact it could have on artistic experimentation in the recording industry. In the days just prior to the ruling, a Marketplace article quoting Eugene Volokh, Gary T. Schwartz Professor of Law at UCLA, indicated that the further redistribution of “Sorry” to DJ Flex complicated the fair use analysis in Minaj’s case, which included a novel legal question as to whether artistic experimentation such as hers constituted a fair use of copyrighted work. Following Judge Phillips’ ruling, Volokh offered further analysis of the decision, which generally agreed with Phillips’ findings, although he noted that Chapman had a potential policy argument that Minaj’s notoriety made it more inevitable that her derivative work would eventually leak. Should Chapman decide to appeal Judge Phillips’ fair use finding, it’s possible that Chapman could raise such a policy argument to contend that the district court erred as a matter of law in estimating the market harm to Chapman of Minaj’s challenged use.
Judge Phillips’ ruling also denied a motion for partial summary judgment filed by Chapman on the issue of whether Minaj violated Chapman’s exclusive rights to distribution under 17 U.S.C. § 106(3) by sending “Sorry” to DJ Flex without Chapman’s permission. The judge found that several disputed facts remained in the case, including the timeframe regarding when DJ Flex actually received the recording of “Sorry,” and whether the song was sent by someone other than Minaj or anyone taking direction from Minaj to send the recorded track. Judge Phillips also pointed out an evidentiary issue with social media posts by DJ Flex submitted by Chapman, which the court found to be inadmissible hearsay. While the parties didn’t dispute that DJ Flex had social media posts indicating that Minaj provided him with a track that wasn’t on Queen, posted the same day that DJ Flex played “Sorry” on the radio, these posts weren’t admissible to prove the truth of the statements that they contained. For these reasons, Judge Phillips determined that Chapman’s distribution claim has to be tried and resolved by a jury.
Image Source: Deposit Photos