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Copyright Concerns: Commercial Purposes Can be Fair Use

Posted by Doug Barrett | Oct 19, 2020 | 0 Comments

In the recent federal district court case of Chapman v. Minaj, the court held that in a copyright holder's dispute, commercial purposes can be fair use under certain circumstances.  Leron Vandsburger, a patent attorney and board member at Washington Lawyers for the Arts, wrote an article on this case, titled "Tracy Chapman v. Nicki Minaj:  Commercial Purposes Can be Fair Use, but Minaj May be 'Sorry,'" in the NW Sidebar.  Here is a summary of that article, and a bit more about Washington Lawyers for the Arts.

Nicki Minaj created an experimental track of her song, "Sorry," which included samples of Tracy Chapman's composition, "Baby Can I Hold You."  Minaj created the track with the samples to send to Tracy Chapman in a request for permission to use the samples in a commercial release of "Sorry" on an upcoming album.   Chapman did not grant permission, and Minaj did not include that version of "Sorry" on the album, releasing a version without the samples instead.  By means not yet determined, a radio DJ obtained a copy of that unreleased experimental version of "Sorry" which included the Chapman samples.  He played it on his New York radio station.  Tracy Chapman then sued Nicki Minaj for copyright infringement, unauthorized use and distribution.  The U.S. District Court judge dispensed with the infringement allegations around the creation of the track on fair use grounds.  The court agreed with Minaj that “the use was not commercial even though there was some incidental commercial aspect of the work.” Instead, the intended use of the work was experimental, because Minaj had told Nas that she wanted to “experiment with Sorry to see where the project could go” and she “never intended to exploit the work without a license.”  Whether there could still be trouble for Minaj resulting from the radio play of the prohibited version of the song remains to be discovered as facts leading to that airplay are further established.

The article's author,  Leron Vandsburger, is a  patent attorney at Kilpatrick Townsend in Seattle.  He is a member of the board of Washington Lawyers for the Arts, and coordinates the WLA's monthly state-wide virtual legal clinic for artists, called Legal Advice Week.  This week-long monthly phone clinic is open to artists and arts organizations throughout Washington State.  Legal issues raised in this clinic  must relate to an artistic discipline and cover issues such as copyright, trademark, publicity rights, licensing, fair use, business formation, or contract review.  To participate in a WLA Law clinic, visit the WLA Legal Advice Week website and follow the participant instructions at the bottom of that page.

About the Author

Doug Barrett

Paralegal Intern – Doug Barrett Doug brings over two decades of senior branch office administration experience from the financial services field, including regulatory compliance management in a professionally licensed environment.  His writing and editing skills bring the firm's message into foc...

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