Not Sorry: Despite Fair Use Ruling for Leaked Song, Minaj Settles to Avoid More Litigation

If the rumors are true, singer-songwriter Tracy Chapman is on a “do not sample” list, an unofficial warning to fellow musicians not to mess with her copyrighted works.¹ That may change after a recent ruling deemed Nicki Minaj’s leaked song a fair use of Chapman’s “Baby Can I Hold You.”²

In 2017, Minaj began collaborating with recording artist Nas on a new song titled “Sorry.”³ She used another artist’s work, allegedly not realizing that it was a cover and that its original creator was Chapman.⁴ Following industry custom, Minaj experimented with the song’s lyrics and vocal melodies without first obtaining a license.⁵ It is common for artists to send their reimagined interpolations to copyright holders when seeking permission.⁶

In 2018, Minaj made multiple requests to Chapman to use “Baby Can I Hold You.”⁷ Each time, Chapman denied the request, and Minaj ultimately did not include “Sorry” on her album Queen.⁸ The day after Queen was released, however, New York DJ Funkmaster Flex tweeted in part: “Shhhhhhh!!!! TONIGHT 7 PM!!! NICKY GAVE ME SOMETHING!!! @nickiminaj ft @nas !!! (NOT ON HER ALBUM!)”⁹ That night, DJ Flex played “Sorry” on the radio.¹⁰ Two months later, Chapman filed suit against Minaj claiming that Minaj violated Chapman’s copyright in the song.¹¹ The first violation, Chapman argued, occurred when Minaj sampled her song without permission.¹² The second violation occurred when Minaj sent “Sorry” to DJ Flex, again without permission.¹³

Regarding Minaj’s sampling of the tune, the court denied Chapman’s motion for summary judgment for copyright infringement and granted Minaj’s cross-motion, finding that “Sorry” was an example of fair use.¹⁴ The court noted that the purpose of using Chapman’s work was less commercial because Minaj was only “experimenting” when she worked with Nas, and she did not include “Sorry” on her album.¹⁵ More importantly, the court noted that Minaj’s song would not affect the market for “Baby Can I Hold You” because securing a license has no impact on the commercial market for the original work.¹⁶The court also had public policy concerns in mind: if Chapman won, artists would effectively be prevented from preliminary experimentation with others’ works, hampering artistic development.¹⁷

As to whether Minaj conducted copyright infringement when she sent the song to DJ Flex, the court determined there were too many unresolved facts, including who sent the song to DJ Flex, when he received the file, and which version he played.[18.Id. at *7–8.]

However, the court won’t have an opportunity to reach a conclusion on this distribution issue because Chapman and Minaj settled out of court for $450,000.¹⁸ This leaves unsettled the question of whether Minaj could be liable for leaking a song—knowing that she lacked a license and that a DJ could (and would) distribute it further—which was only later deemed fair use. If Minaj had succeeded, artists may have faced fewer obstacles in creating and sharing “unfinished” works based on older copyrighted pieces.

Recognizing the challenges ahead, Minaj made a settlement offer.¹⁹ Her team, however, was careful to note that they “settled for one reason only. It would have cost us more to go to trial.”[21. Id.] Despite their purported confidence, Chapman’s reputation may still carry some weight after all.