Dozens of times over the past 10 years, we have written about the “fair use” exception to copyright infringement.  You may recall that “fair use” under the U.S. Copyright Act permits limited use of copyrighted works for purposes of “criticism, comment, news reporting, teaching, scholarship, or research.” It’s a complex area and one that is continuously challenging rights owners and the courts. You may also recall that courts typically consider four factors in determining whether the fair use exception applies to an alleged act of copyright infringement:

(1) the purpose and character of the use,  (2) the nature of the copyrighted work,  (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and  (4) the effect of the use upon the potential market for or value of the copyrighted work. 

Here’s a new twist on fair use that may have you scratching your head and pondering the wider implications should the court render its decision. Here are the facts:

Well-known rapper Nicki Minaj wrote a song called “Sorry”, which contained a sampling of music written by Tracy Chapman, a well-known singer-songwriter, in a title called “Baby Can I Hold You”. Minaj reached out to Chapman to obtain copyright clearance for the sampling. Chapman refused. Although Minaj had not published “Sorry”, she experimented with the Chapman sampling during the composition process even though she had not secured permission from Chapman.

Minaj understood the problem and when she released her album Queen, which was to include “Sorry”, it was not included. Yet, the day after the album’s release, “Sorry” was leaked to a radio station and the greater Internet. Chapman issued DMCA takedown notices and sued Minaj for copyright infringement.

The case has reached the summary judgment stage, both parties dueling with diametrically opposed arguments. What’s interesting is Minaj’s argument. She claims that experimenting with an unlicensed mix — but not publishing it — is fair use and that stopping her from doing so would have a chilling effect upon the composition process. In her lawyer’s words:

And in the process of creation, no one approaches the original songwriter (the “rights holder”) for a license to experiment. The musicians just experiment. If something works, and the recording artist wants to release the song commercially, then the record label, managers, and attorneys get involved and seek the required permission. If it is granted, the recording is commercially released. If permission is denied, the recording is discarded; no one is harmed; and the experimentation begins anew. 

Chapman, on the other hand, calls Minaj’s conduct a “prototypical” example of copyright infringement. Moreover, Chapman points to the fact that Minaj knew she required a license to include the track in the Queen album, which is why she ultimately did not. Chapman further accuses Minaj of intentionally releasing “Sorry” to the public pointing to various social media evidence. As to Minaj’s defense, Chapman writes:

Ms. Maraj’s Motion represents a fundamental misunderstanding of copyright law and the role that fair use plays within it. It is black letter copyright law that a copyright holder possesses an exclusive right “to prepare derivative works based upon the copyrighted work.” 17 U.S.C.A. § 106. “A logical extension of the exclusive right to ‘prepare’ derivative works is the right to prohibit others from doing so without permission.” Fahmy, 908 F.3d at 389 n. 10. Without citing to any relevant authority, Ms. Maraj asks this Court to virtually eviscerate this right to prohibit others from “preparing” derivative works without permission.

So there you have it, one side argues that absent application of the fair use exception to copyright infringement, artists will be unable to practice their craft, and the other side argues that the law provides no such exception.  You may legitimately ask, do you need a license to experiment with another author’s works? Is “everybody does it” fair use (see the factors listed above)? We’re skeptical, but let’s see if the court adds yet another opaque layer of precedent on fair use or relies on “bedrock principles”.

— Adam G. Garson, Esq.

*Originally posted on September 17, 2020