It’s all fun & games until your music is leaked.

The Background.

Famous music artist Nicki Minaj was recently sued in California regarding a copyright claim by American singer-songwriter, Tracy Chapman.

In 2017, Nicki Minaj experimented with a new song called “Sorry” (featuring Nas) for her album “Queen”. The track sampled some of the melody from a song called “Baby Can I Hold You,” which was released on Tracy Chapman’s debut album in 1988.

You never heard Nicki’s song, right? That’s because it was never officially released. Nicki’s team reached out to get the required clearances to add the song to the album, but Tracy denied permission to use the song at all. However, “Sorry” was still allegedly “leaked” to the media. It was played on popular New York radio station, Hot97. DJ Funkmaster Flex later posted on social media that Nicki “gave” him the track.

The Law Suit.

Tracy alleged that Nicki infringed on her copyrights by both experimenting with the song and leaking it to the media. Tracy claimed that Nicki wasn’t allowed to sample her song at all because as a copyright owner she had the exclusive right to control the preparation of derivative works. Basically, because it was her song … nobody should even be able to experiment with it without her permission. Wild right?

The Judge sided with Minaj in regard to experimenting with the song saying, “artists usually experiment with works before seeking licenses from rights holders and rights holders typically ask to see a proposed work before approving a license.” And, “a ruling uprooting these common practices would limit creativity and stifle innovation within the music industry.”

BUT, the litigation will continue. The judge decided that a jury should decide whether the “leaked” music was copyright infringement.

Basically … it’s all fun and games until your music is leaked.

The Legal Tea.

They’re headed to trial regarding the leak to Hot 97. Some people may think … “no harm no foul.” Nicki never released the track and therefore technically never made money off of it. Why would they need a trial? What was the harm? You can’t even find the song online! Well … because under the law it doesn’t matter whether the artist actually profited.

In order to prove infringement, depending on the issue in the case, there’s a factor called “commercial advantage.” Tracy will only have to prove that Nicki intended to make money or obtain some other gain from the infringement. It won’t matter if Nicki actually gained anything. Your copyrights … are your rights. Just because someone doesn’t make money off of a violation doesn’t mean they shouldn’t be held accountable for infringing on your rights.

The jury will have to decide if Nicki intentionally leaked the track. Court documents say that Nicki sent private DM’s on Instagram to DJ Funkmaster Flex, asking him to play the track on the radio. Nicki says she doesn’t know how he received the track.

I think it will be a battle for Nicki. Nicki is so well known that Tracy can essentially argue that any publicity is “good publicity.” Basically, when Nicki’s name or music is mentioned … things go viral. So, with the song being leaked to Hot 97, Nicki could have intended to gain traction for the album or publicity in general.

The trial will be interesting for sure. News sources estimate that Nicki Minaj’s net worth is $100 million. If Tracy wins the suit, who knows what the jury would award in damages.

The Cole Perspective.

So, why is any of this interesting? Because artists experiment with different beats and samples ALL the time. If the judge would have decided that even experimentation was a copyright violation, it would significantly stifle artist creativity. Artists might have to pay for the sample in order to test the song. Can you imagine paying for clearances for a song that you won’t use? Literally spending money on a song that won’t make you any money.

I think the judge made the right decision. Artists should be able to sample a song while writing and creating their music. It was used in private, most likely during a studio session. If the judge sided with Tracy it could have been crippling to the music industry.

In my opinion, it comes down to the fact that courts have to balance protecting creativity and encouraging creativity. You want artists to create because new music keeps the industry alive. On the other hand, people shouldn’t be able to profit off of someone else’s ideas. In most instances, artists end up adding their own spin on the track anyway.

Think about it, the flexibility is necessary to promote a creative environment. How do you know if you like something, if you don’t try it?! Some of your favorite artists have used samples:

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Song	Sample
All Falls Down – Kanye West	Mystery of Iniquity – Lauryn Hill
Through the Wire – Kanye West	Through the Fire – Chaka Khan
King Kunta – Kendrick Lamar	Smooth Criminal – Michael Jackson
Sicko Mode – Travis Scott	I Wanna Rock – Luke
Summer 2020 – Jhene Aiko	Summer Madness – Cool and the Gang
Pound Cake – Drake	C.R.E.A.M.  – Wu-Tang Clan / Don’t Say a Word by Ellie Goulding
99 Problems –  Jay-Z	Funky President (People It’s Bad) by James Brown

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Even deeper if the Judge decided that artists couldn’t use experiment with samples, it could have affected mixtapes and the covers you see on Instagram and Youtube. Most mixtapes are compilations of a musician’s twist on sampled songs. Music covers allow upcoming artists to gain traction by putting a personal spin on already popular songs. Many upcoming artists use mixtapes and covers to break into the industry. Can you imagine if the general public was forced to pay to experiment with a sample? What if you had to go about against huge entertainment companies just to use the sample? Would you even know who to contact? What if you went viral over night before you got the required clearances?

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