Music sampling is a tricky slope. When the creative flow hits, sometimes you just go for it, in hopes that all will work in your favor. BUT, and this is a major but, if the chips don’t fall your way, you just may be forced to pay. Such was the case between Nicki Minaj and singer-songwriter Tracy Chapman.
In 2018, the Queens rapper recorded a song featuring Nas, called “Sorry”. The song, sampled music from singer-songwriter Tracy Chapman’s 1988 hit “Baby Can I Hold You” without Chapman’s blessing. And by blessing, we mean, license clearance. According to Chapman’s suit, Minaj’s team sent a formal request in July 2018 to use Chapman’s song, noting that Minaj intended to “interpolate” Chapman’s work. An interpolation is essentially a rerecording of the melody and lyrics of the song, rather than sampling an existing recording. Chapman’s publishing team denied the request. That wasn’t the first time Chapman denied the request either. At the end of June, DMG, a music clearance company called, sent Chapman’s team an exploratory note, allegedly saying that an “A list artist” wanted to use “Baby Can I Hold You” and asking if Chapman remained on an unofficial “do not sample or interpolate” list. Apparently, Minaj was not deterred, as the song was recorded anyway.
Here’s where things get interesting.
Because the song wasn’t cleared, Minaj removed it from her album Queen and never officially the released the track. However, the song made its way to Funkmaster Flex, Hot 107.9 and online. According to Minaj, the song was leaked + not by her. When questioned about he obtained the track, Flex stated a blogger friend sent it to him.
In December 2018, Chapman filed suit against Minaj, accusing her of using “Baby Can I Hold You” without permission, which she stated Minaj requested and was denied. In response to the filing, Minaj argued that her creation of “Sorry,” even without a license from Chapman, was protected under Fair Use. The Fair Use Doctrine is an exception to copyright law that allows creators to borrow copyrighted material under very specific circumstances.
Judge Virginia A. Phillips, of United States District Court in Los Angeles, sided with Minaj on the issue of fair use. In a summary judgment decision, Judge Phillips stated that “uprooting the common practice of letting artists experiment privately would limit creativity and stifle innovation within the music industry.” While this answers the question of whether or not artists need permission to experiment in the studio, it does not speak to who is liable for the song finding it way outside the studio. Likewise, Judge Phillips allowed the case to continue to trial in hopes of answering that question. However, it never made it. On December 17, 2020, Minaj’s lawyers made an offer of $450,000, “inclusive of all costs and attorney fees incurred to date,” which Chapman accepted on December 30, 2020. That’s not a terrible way to end a terrible year—if you’re Chapman!
Here’s our take.
People certainly have the right to refuse a license to the creative work for which they hold a legal copyright. Scrap that urban myth that says you’re allowed to use 30 seconds of copyrighted material. Don’t do it without getting clearance from the rightful owner(s) of the works. All owners. Keep in mind, the copyright owner may be the artist, the label, the writer and/or the music publisher. You need to make sure you’re getting the clearance from all. of. them. If you’re considering sampling, including interpolation, don’t risk it. Let us guide you. Because in the music business, it is not easier and it is definitely not cheaper to ask for forgiveness than permission.