A judge has sided with Nicki Minaj over one aspect of her copyright dispute with Tracy Chapman finding that taking and using samples of Chapman’s song Baby Can I Hold You in the studio, to create a new track, did not amount to copyright infringement because it was “fair use”.

As previously reported in zoom-in, Minaj sampled the song, from Chapman’s self-titled debut album, for her track Sorry, which also featured New York rapper Nas.

After recording the song, Minaj approached Chapman for permission to use the sample, saying her track had used “interpolations” from Baby Can I Hold You.

Chapman refused, leading Minaj to tweet “Sis said no”.

Minaj’s album Queen was released without the song, but it was later given to a New York radio dj, DJ Flex, who then played it on air, leading to rips appearing online.

Chapman claimed her lyrics and vocal melody comprised approximately half of Minaj’s work, and were easily recognisable as Chapman’s, with the works being “strikingly similar”.

Chapman sued for copyright infringement both in relation to the creation of Minaj’s song in the studio, and its later distribution.  This ruling sides with Minaj over the creation element, but Chapman’s claim regarding distribution of the song will go to a jury trial.

Arguing her use of samples of Chapman’s work amounted to fair use, Minaj relied on the purpose of the use i.e. to experiment with the artist’s vision and create a form that could then be submitted to the rights holder (Chapman) for approval.

In analysing the fair use defence, the Judge referred to this purpose, and the fact that “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”.

The Judge found that: “…A ruling uprooting these common practices would limit creativity and stifle innovation within the music industry. This is contrary to Copyright Law’s primary goal of promoting the arts for the public good. This factor thus favors a finding of fair use.”

American law requires the court to look at four factors when assessing fair use: the purpose and character of the use; the nature of the work; the amount and substantiality of the portion used in relation to the work as a whole; and the effect of the use upon the potential market for or value of the work.

English law in this area is based around the principle of “fair dealing” and the requirements are primarily set out in legislation rather than in case law.

Although there are obvious similarities, fair dealing is generally a more limited defence.  Rather than courts having to consider the four factors outlined above, in the UK, courts must determine whether the use complies with the provisions of specific statutory defences such as fair dealing for the purposes of criticism or review; or fair dealing for the purposes of reporting current events.