Sound bite: Is sampling fair use?

Where’s the line between creative experimentation and theft? That’s the question at the heart of a lawsuit between Tracy Chapman and Nicki Minaj over whether the act of sampling a song in the studio constitutes copyright infringement.

Sampling is a decades-old technique, but one which in recent years has become integral to the creative process of some of the world’s most popular artists.

Clearing samples with the original copyright owners is now standard procedure in many major album releases, especially for hip-hop and pop music. If artists fail to obtain permission to use a sample, it can delay album releases or force them to cut a song from the tracklist.

That’s precisely what happened with Nicki Minaj’s 2018 album “Queen”. While working on the album, Minaj collaborated with hip-hop legend Nas on the song “Sorry”, built around a sample of Tracy Chapman’s 1988 hit “Baby Can I Hold You”.

But Chapman refused permission for Minaj to use the sample. The album is believed to have been delayed a week while Minaj’s team tried to secure clearance, but to no avail. “Queen” was released in August 2018, with “Sorry” conspicuous by its absence on the tracklist.

Up to this point, the episode is a relatively mundane example of behind-the-scenes wrangling over copyright that accompany many modern album releases. But then, a copy of the unreleased track was leaked to New York DJ Funkmaster Flex, who played it on his radio show.

The song, the existence of which was already common knowledge among Minaj’s fans, has still never been commercially released but is still in circulation on the internet. Chapman subsequently sued Minaj for copyright infringement in October 2018.

One prong of Chapman’s case is that Minaj gave the song to Funkmaster Flex and is therefore liable for infringing her copyright. Minaj denies she had any role in leaking the track, and this may need a jury trial to resolve.

But Chapman’s suit also appears to suggest that Minaj violated her copyright at a much earlier stage in the process when she made a demo of the song in the first place.

Minaj’s lawyers have now responded with a motion asking the court to declare that in-studio “experimentation” with samples is fair use of a copyright-protected work.

If successful, Minaj will escape all liability and a federal court will have given the green light for musicians to use samples when creating tracks in the studio, without fear of a lawsuit at that stage.

Should the court decline to grant summary judgment as a matter of law, it will be up to a jury to decide whether Minaj is liable.

“Chapman’s position would completely stifle creativity and prevent all but the most well-funded artists from making an interpolation in the first place,” says Eric Lauritsen, one of the Browne George Ross attorneys representing Minaj in the suit.

‘Shiver down the spine’

Minaj, one of the biggest pop stars in the world, probably would fall into the category of the “most well-funded artists”. But her lawyers are arguing that a finding of summary judgment for Chapman would send a “shiver down the spine” of the music industry and block younger, less established artists from getting a break.

“Do we want to make a new pay day for an artist who’s really established and let her control this market for sampling at an even earlier stage than she already does, or give preference to prospective new artists who are looking to break through?” Lauritsen asks.

Chapman, of course, also argues that she is protecting artists’ rights and the creative process by ensuring that artists have control over how their work is used. The singer says that she has the right to block others from using her music against her wishes.

That includes “preparing derivative works”, as it is known in copyright law. Lawyers for Chapman have not yet responded to a request for comment from WIPR, but her position throughout the case so far has been consistent: as the copyright owner, she has complete control over whether her work can be reproduced.

Kelly Klaus, partner at Munger, Tolles & Olson and music copyright expert, thinks Chapman could have a “very compelling” case.

“Because of the nature of the fair use doctrine, it’s hard to say something qualifies as a textbook case of being a fair use,” Klaus says, noting that any factual disputes between the parties could convince a judge to let it go to a jury rather than grant summary judgment. In his opinion, the leak to the radio station could also “undermine the narrative that Minaj is presenting that she was trying to do this the right way”.

‘Chilling effect’

On the other hand, Wesley Lewis, an associate at Haynes and Boone, argues that a ruling in favour of Chapman would have a “chilling effect on the way music is made”.

“Taking into account the realities of how music is produced today, artists typically need to be granted a certain amount of licence to experiment with other people’s work and incorporate or reference past musical traditions,” Lewis says.

Catherine Miller of Holland & Hart law firm thinks it is more likely that the case will be settled on whether Minaj leaked the track to Funkmaster Flex.

“The novel part of Nicki Minaj’s argument is that it’s fair use to do this experimentation in the studio under copyright law, but that’s unlikely to be the deciding factor in the case if Chapman can rely on infringement of another right under copyright law, such as distribution,” Miller says.

But the case could still help clarify the law around “in-studio experimentation”, she says. Miller notes that, a lot of the time, artists need to create a derivative work before a copyright holder will agree to a licence.

Minaj’s lawyers themselves echo that point, arguing that a ruling in their favour could help facilitate the licensing process by giving artists the freedom to experiment and then seek permission to use a sample commercially.

“Copyright should support the creation of art,” Lauritsen says. Whether that giving artists the legal breathing room to sample another’s work, or giving artists like Chapman greater control over how their music is used, may still be up to a jury to decide. But given the importance of sampling in the creation of modern pop music, the case will be closely watched by anyone with a stake in music copyright.

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