By Marc Hogan, Pitchfork, October 24, 2018
Though Nicki hasn’t formally released “Sorry,” which interpolates Chapman’s “Baby Can I Hold You,” her generous usage and accompanying paper trail leaves her vulnerable.
This summer, a little more than a week before the release of her album Queen, Nicki Minaj tweeted a request to Tracy Chapman to clear a sample for the album. In a later tweet, Minaj wrote, “Sis said no.” The album was released on August 10, without any songs featuring a Tracy Chapman sample.
On August 11, the day after the album’s release, Funkmaster Flex tweeted, “Nicky [sic]gave me something.” That night on Hot 97, Flex premiered “Sorry,” a Nas-featuring track by Minaj that heavily interpolates a cover of Chapman’s hit 1988 song “Baby Can I Hold You.” Nicki can be heard singing entire verses as well as the chorus from Chapman’s original. The track was quickly removed from Flex’s website, but rips and leaks soon circulated online.
Now, Chapman has sued Minaj for copyright infringement. In a complaint filed in U.S. District Court in California this week, Chapman calls for a jury trial, seeking monetary damages along with an order blocking Minaj from doing pretty much anything more with the song.
“Sorry” has never been officially released. Nicki Minaj herself has not done anything to promote or profit off the song. And yet, music copyright lawyers say Chapman has a strong copyright-infringement case and Minaj will probably want to settle.
Due to the confusing way that copyright law works, Minaj could end up having to pay money even if she never made “Sorry” available for sale. “Calculating damages might be trickier without sales and streaming performance to reference,” says Mattias Eng, whose firm represented Robin Thicke and Pharrell in the infamous “Blurred Lines” copyright case. But infringement also carries the risk of what are known as statutory damages, where the amount is defined by law rather than based on any actual harm caused. If a court finds that Minaj infringed on Chapman’s copyright intentionally, she might have to pay statutory damages of up to $150,000.
“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.”
Repeating identical lyrics puts Minaj on shakier ground, legally speaking, than simply borrowing a feeling or groove. “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. “It’s stronger than the ‘Blurred Lines’ case where you have two songs that really don’t sound alike other than an inspirational vibe, whereas here it’s word-for-word lifting.”
The lawsuit also quotes one of Minaj’s own representatives as allegedly admitting that she “used interpolations of” Chapman’s song in the track. “The paper trail eliminates any reasoned argument as to intent, subconscious copying, or perceived consent,” says James Sammataro, who sued Universal Music Group on behalf of Enrique Iglesias this year over streaming royalties. “The only open question,” he says, is whether “Sorry” copies so much of “Baby Can I Hold You” that Minaj can’t claim “fair use” as a deference—essentially that her use of the track serves a “transformative” purpose.
Nicki’s tweets also might be a problem for her, if the case ever goes to trial. In particular, Sammataro and Hochberg both point out that Minaj’s tweet that “Sis said no”—an apparent admission that Chapman rejected her request for permission—could go over poorly with a jury. 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.”
From a larger copyright perspective, Sammataro notes, the case “perfectly frames the debate” over whether the law is working as intended. On one hand, Chapman has the right to control who uses her work, and how, for the length of her copyright term. “However, in exercising her right to protect her work, Chapman can preclude other artists from building upon her original expression, thereby stifling creativity and slowing the evolution of music,” Sammataro says. “After all, almost all new music builds on the old.”
Although “Sorry” might seem like an unusual case because the song was not officially released, for copyright watchers, the questions it raises are all too familiar. As familiar as it seemed for Chapman to hear Nicki singing the words, “Sorry is all that you can’t say.”
