The legal dispute between Chapman and Minaj is a bit different from most copyright cases where litigants quarrel over whether works are substantially similar. Here, there appears to be no controversy that "Sorry" emanates from "Baby Can I Hold You," nor much discussion about whether Chapman's work is actually original enough to merit protection. But that doesn't end matters.
First, here's what led to the creation and release of "Sorry," according to depositions, communications, and more documents from discovery, laid out in the new court papers...
In 2017, the hip-hop artist Nas asked Minaj to record vocals for a new track that would incorporate elements of an older song also called "Sorry." Minaj recognized the song and believed it was the work of an artist known as Shelly Thunder. Not exactly. The earlier "Sorry" was a reggae version of Chapman's "Baby Can I Hold You." Nevertheless, Nas and Minaj proceeded to work on their new version with the understanding that they'd clear rights later if the collaboration turned out to be fruitful.
When "Sorry" was selected for inclusion on Queen, Minaj and her reps sought a license to Chapman's composition. One of the clearance specialists put on the task is said to have known that Chapman was on the “do not sample list”-- an unwritten list of artists that were well-known for not allowing samples of their works. Minaj's team made efforts anyway, but Chapman rejected a request. Minaj persisted and, on social media, she vented. On Aug. 1, 2018, Minaj tweeted, “I’m torn, y’all help. Tracy Chapman, can you please hit me. omg for the love of #Queen." With days to go, Minaj openly mused about delaying the release of the album.
That didn't happen, and in the week leading up to the release of Queen, Minaj had conversations with Nas, Funkmaster Flex, and others about the situation. The day after the album's release, Funkmaster Flex posted on Instagram, " Shhhhhhh!!!! TONIGHT 7PM!!! NICKY GA VE ME SOMETHING!!! @nickiminaj ft @nas !!! (NOT ON HER ALBUM!) GONNA STOP THE CITY TONIGHT!!!!!!!!!!!!!”
The song was played, and the New York radio station posted a link on its Instagram page. It traveled widely on the Internet as Chapman kept issuing DMCA takedown notices.
A clear cut case of copyright infringement?
Chapman believes so.
"The facts are undisputed," argues John Gatti, her attorney at Manatt, in a brief. "Ms. Maraj violated Ms. Chapman’s copyright by creating an illegal derivative work and distributing that work. Moreover, these actions were indisputably willful. Ms. Maraj had knowledge of the illegality of her actions and proceeded. Thus, Ms. Chapman’s copyright claim is appropriate for summary judgment."
Not so fast, says Minaj's attorney Eric George in defendant's own summary judgment motion.
George puts aside issues related to Minaj's responsibility for the release of the non-album track. That will almost assuredly come later, perhaps in opposition to Chapman's motion.
Instead, the defendant is focused on whether there's any copyright infringement from the creation of the demo recording. The starting point for the summary judgment motion is how recording artists go into the studio to experiment.
"[I]n the process of creation, no one approaches the original songwriter (the 'rights holder') for a license to experiment," states Minaj's court brief. "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. Recording artists require this freedom to experiment, and rights holders appreciate the protocol as well. Often, the rights holder does not want to simply approve a use in the abstract -- i.e., 'any hip hop version of your song.' The rights holder wants to hear the actual version before giving her permission."
"The plaintiff here, Tracy Chapman, wants to turn this process on its head," continues George.
It's argued that U.S. District Court Judge Virginia Phillips should decide that her demo recording of "Sorry" made fair use of copyright because it was basically pure of purpose. As the brief puts it, "Indeed, creativity would be stifled, were artists required [to] seek and pay for a license before even experimenting with a work,"
Minaj also turns to another fair use factor -- the impact of her use of Chapman's song -- and her attorney argues "the creation of a derivative work for the limited, private purposes of artistic experimentation or securing the copyright owner’s consent for broader distribution has precisely zero impact on the commercial market for the original work."
Now whether or not things can be sliced and diced this way when the demo recording did get out, allegedly at the behest of Minaj herself, remains to be seen. There's probably good reason to doubt whether the need to experiment is something that alone can beat a copyright claim, especially given all that's at play here. Nevertheless, Minaj goes bold, even stating in court papers that any legal loss for her on this subject "should send a shiver down the spine of those concerned with the entertainment industry."
This article was originally published by The Hollywood Reporter.