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Copyright Forgiveness Comes At A Price

Singer-songwriter Tracy Chapman at the Cactus Festival in Bruges, Belgium, July 10, 2009.
photo of Tracy Chapman © Hans Hillewaert, licensed under CC BY-SA 4.0

For many children and some adventure-seeking adults, “Ask forgiveness, not permission” is an attractive option, or a way of life.

Sometimes, however, forgiveness is not forthcoming. Other times, it comes at a price. For rapper Nicki Minaj, the price of forgiveness from singer-songwriter Tracy Chapman was $450,000.

That is the sum that resolved a widely publicized copyright infringement suit that Chapman brought against Minaj over a song that was never officially released, but which nonetheless found its way onto the airwaves and the internet. Unlike some other recent litigation that has blurred the lines that separate one creator's intellectual property rights from another’s, the high-profile spat between two renowned artists of different generations provided some genuine, rational guidance to help musicians distinguish safe business practices from risky ones.

The Minaj-Chapman dispute goes back several years, or several decades, depending on your perspective. Chapman wrote “Baby Can I Hold You” in 1982, releasing it in 1988 as her third single. It was later covered by Jamaican artist Shelly Thunder under the title “Sorry.” Thunder’s rendition initially attracted Minaj’s attention in 1997, but she did not seek to record the song until 2017. That was when she developed a recording incorporating it, as a collaboration with fellow rapper Nas. By that time, she was aware that Chapman wrote the song and controlled its copyright.

Songwriters do not control who can cover a song using the original lyrics and melodies. Artists can obtain those rights under compulsory licenses that generate royalties for the writers and publishers. But derivative works – such as including part of a song or its elements in a new composition – are not subject to compulsory licensing.

In this case, Minaj needed Chapman’s permission. But Chapman is known in the industry as being part of an unwritten “do not sample or interpolate” list, because she does not grant such permission. Minaj hoped she could persuade Chapman to make an exception. She couldn’t.

In August 2018, Minaj was preparing to release her album “Queen.” She desperately wanted to include her version of “Sorry” featuring Nas on the album. When her team could not obtain clearance from Chapman, she reached out to the songwriter directly over social media. Chapman was unmoved. Minaj also made a public appeal to fans, asking whether she should release the album without “Sorry” or hold it in hopes that Chapman would relent. This was a way of trying to generate more pressure on Chapman. The fans were split, but Chapman was resolute. The album dropped on August 10 without “Sorry.”

But someone in the limited universe of people in Minaj’s professional orbit leaked a copy of the track to a prominent radio host, Aston George Taylor Jr., who performs as DJ Funkmaster Flex. After promoting it on his social media, he played the track on the air at New York City’s WQHT, popularly known as Hot 97. Fans recorded the track and posted it on many online outlets. Chapman diligently issued takedown notices to these outlets under the Digital Millennium Copyright Act.

Chapman also sued Minaj, whose legal name is Onika Tanya Maraj-Petty. Minaj conceded that although she had initially sought to have Funkmaster Flex play the track in hopes that positive fan reaction would get Chapman to relent, she claimed to have had a “change of heart” and denied authorizing the leak. The radio host said he received the track from “a blogger.” The source of the unofficial release would have been a major issue had the case gone to trial.

Chapman claimed that Minaj had no right to use her work in the studio to make her recording, and also had no right to release the finished or nearly finished track without her approval. Not surprisingly, U.S. District Judge Virginia A. Phillips of Los Angeles ruled against Chapman on the first point. Phillips accepted Minaj’s explanation that copyright holders often want to consider the exact way in which their work is being used before they decide to grant permission for its use. In addition, creating music or other art requires experimentation.

“A ruling uprooting these common practices would limit creativity and stifle innovation within the music industry,” the judge wrote. She determined that using Chapman’s work in the studio to create a new track that might never be released, and could even have been discarded, constituted fair use under the copyright law. This should come as relief, if not a surprise, to anyone who works in a recording studio.

Once the court affirmed Minaj’s right to create the recording, although not to release it, the legal stakes were higher for both sides. Minaj could have been liable for a very large damage award if a jury had found that she deliberately released the recording over Chapman’s objections. But Chapman might have gained little or nothing if she was unable to prove her claim that Minaj was responsible for the unauthorized release.

In the end, Minaj used an interesting federal court procedure known as Rule 68 to resolve the case. She offered to concede the matter for $450,000; the rule gave Chapman 14 days to accept. If she rejected the proposal, she could go forward with the suit – but she would have been responsible for Minaj’s additional legal costs if the result was either a victory for Minaj or a damage award smaller than the $450,000 offer.

Chapman decided to accept the offer and declare victory. “This lawsuit was a last resort,” she said in a press statement, “pursued in an effort to defend myself and my work and to seek protection for the creative enterprise and expression of songwriters and independent publishers like myself.”

For her part, Minaj now enjoys forgiveness in the eyes of the law. It came at a price, but it allows her to move on without the threat and distraction of fighting another musical icon in court. The rest of the industry enjoys a bit more clarity about the rules for using another artist's work, and a reminder that in business as elsewhere, “no” still means no. Even if you ask.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s most recent book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book, Looking Ahead: Life, Family, Wealth and Business After 55.

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