Sorry, Nicki

On Monday, October 22nd, 2018, Tracy Chapman slapped Nicki Minaj with a copyright lawsuit.  In her complaint, Chapman alleges that her song “Baby Can I Hold You” was sampled in Minaj’s song entitled “Sorry” without Chapman’s permission.  Beginning in June 2018, Minaj and her representatives made multiple requests to license “Baby Can I Hold You,” which were all denied by Chapman.  Despite the denials, Minaj leaked “Sorry” to Funkmaster Flex, a radio DJ, who then teased the song on social media, and also played the song on the radio on August 11, 2018.  After Funkmaster Flex played “Sorry,” listeners reproduced the allegedly infringing work and published it on multiple websites.  

Chapman said that Minaj used the “most recognizable and memorable” portions from “Baby Can I Hold You,” and stated, “This action is necessary to redress Maraj’s disregard and willful infringement of Chapman’s rights under the Copyright Act, and to ensure that her misconduct is not repeated.”

Although Minaj has not made “Sorry” available for sale, music copyright lawyers believe Chapman has a strong case and that Minaj will probably want to settle.  17 U.S.C. § 504 of the U.S. Code provides that a copyright infringer is liable not only for actual damages, but also statutory damages if a court finds that the infringement was intentional.  While it may be difficult to calculate actual damages without sales to reference, Chapman’s allegations make a strong case for finding Minaj liable for statutory damages.

“’The elements of copyright infringement are access and substantial similarity,’ says Henry Gradstein, who won a $43 million settlement last year against Spotify, on behalf of songwriters. ‘If they took 50 percent of the composition, they obviously had access to it; if they tried to negotiate a deal and they didn’t get it, that’s copyright infringement 101.’”

Not only do the choruses of the two songs share similar melodies, but also Minaj repeats identical lyrics from Chapman’s “Baby Can I Hold You.”  Exhibit 1 in Chapman’s complaint is a comparison chart of the lyrics of the two songs that highlights how Minaj’s chorus entirely consists of lyrics taken from Chapman’s composition.  “‘It’s a strong case for Tracy Chapman, because it’s a wholesale lift of the lyric as the centerpiece of Minaj’s track,’ says Bill Hochberg, who works with the Bob Marley estate.”

The lawsuit also alleges that on July 10, 2018, one of Minaj’s representatives emailed a letter to Chapman’s managers, admitting, “In the song… [Minaj] has used interpolations from” Chapman’s song.  Minaj also tweeted multiple times about “Sorry” and her licensing issues with Chapman.  On August 11, 2018, Minaj tweeted, “Sis said no” –  an apparent reference to Chapman’s continued denial of permission.  Hochberg pointed out that this particular tweet could go over poorly with a jury, since Minaj seemed to have admitted publicly that she knew that Chapman rejected her request.

Hochberg says, “Overall it’s an embarrassment for Minaj and the case probably settles quickly with an exchange of money and Chapman retaining her artistic integrity by not allowing the song to be released, and at Queen Minaj’s palace, maybe some wrist slapping or perhaps head rolling in the aftermath.”

Ashley Park is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2021).

Image: Eva Rinaldi creator QS:P170,Q37885816, Nicki Minaj 7, 2012, CC BY-SA 2.0

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