An Artist’s Right to Private Musical Experimentation
Examining Nicki Minaj’s recent copyright win and musical experimentation as fair use
Last month, hip-hop singer and rapper Nicki Minaj landed a highly controversial victory in court. Minaj prevailed in a copyright infringement lawsuit after the Central District of California ruled that her private experimentation with another artist’s music is permissible under the fair use doctrine—even without a license from the copyright holder.
Prior to Minaj’s release of her album Queen (2018), she had been experimenting with a song called “Sorry,” which contained the same intro, hook, and a sped-up version of the melody from the song “Baby Can I Hold You” by Tracy Chapman. Minaj recorded “Sorry” and then sought permission from Chapman to release the song. Chapman refused, and the song was never released by Minaj.
Although the song was dropped from Minaj’s album, DJ Funkmaster Flex obtained an unreleased version of “Sorry” and broadcast it on the radio. Minaj has denied rumors that she distributed the song to Flex, despite the existence of damaging messages that suggest otherwise; they reflect that Minaj sent a teaser of the song to Flex and stated it would not be on the album, but that she wanted him to play the song exclusively on New York radio. Minaj admitted that she sent the messages but testified that she never actually sent the song. Flex testified that he received the song from a blogger. Whether Minaj distributed “Sorry” to Flex is still in dispute and will be left to a jury to decide.
The basis of Chapman’s copyright infringement lawsuit has some disturbing implications. Not only is Chapman alleging copyright infringement of “Baby Can I Hold You” for the distribution of “Sorry” to Flex, but Chapman is also alleging that Minaj’s private experimentation of “Sorry”—even prior to its release—qualifies as copyright infringement, as Minaj did not seek Chapman’s permission prior to experimenting with the song.
The Vivid IP team believes the freedom to experiment is an essential aspect of an artist’s ability to produce new and innovative creative works. The court in the Central District of California reasoned that a ruling in favor of Chapman would require artists to obtain licenses before creating their work, stifling creators who likely wouldn’t be able to take on the financial and administrative burden of such a strict requirement. We wholeheartedly agree with the court here: Private experimentation is not infringement—and an opposite ruling would suppress an artist’s creativity and ability to produce new works, contrary to the policies behind the fair use doctrine.
We’re happy to protect an artist’s freedom to experiment, provided that it’s done privately and is not distributed in any way. To that end, we’ll be following the Minaj v. Chapman case closely to hear a ruling on the distribution issue. If the jury finds that Minaj distributed “Sorry” to Flex, then the Copyright Act distinguishes that Minaj has infringed on Chapman’s copyrights.
Do you have questions of your own about copyrighted works? Drop us a line below, and let’s talk about how our team can enable you to create and protect your own original works.
