On September 16, 2020, California federal judge Virginia A. Phillips ruled that Nicki Minaj’s use of Tracy Chapman’s copyrighted work in the creation of Minaj’s song “Sorry” was fair use. “Sorry” interpolated Chapman’s composition “Baby Can I Hold You,” and even though Minaj sought a license from Chapman, she never received permission to use Chapman’s song. Minaj released her album without the song “Sorry,” but the song surfaced online after Aston George Taylor (DJ Flex), a New York radio DJ, played the track on his radio show. How the song was distributed to DJ Flex is still under dispute. Chapman’s claim for copyright infringement was based on the creation and distribution of “Sorry” that incorporated “Baby Can I Hold You” without Chapman’s permission. The court granted Minaj’s motion for summary judgment as to the first issue and held that Minaj’s use of Chapman’s song in the creation of “Sorry” did not violate copyright laws. The case will proceed on the issue of whether Minaj had any copyright infringement liability for the distribution of the song.

The Copyright Act provides that the fair use of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching… scholarship, or research, is not an infringement of copyright.” Courts employ a non-exhaustive, four-factor test when evaluating the question of fair use as in Campbell v. Acuff-Rose Music: (1) purpose and character of the use, (2) the nature of the copyrighted work, (3) substantiality of what was copied, and (4) the effect of the use upon the potential market for or value of the copyrighted work. The factors are not intended to be evaluated in isolation but should be weighed in light of the copyright’s purpose.

Judge Phillips focused on the first and fourth factor when evaluating Chapman’s infringement claim. As to the first factor, the court looked to the commercial nature of the use of the work. Here the court found that Minaj’s purpose was not purely commercial, and she did not “exploit the copyright for commercial gain.” The court reasoned that Minaj’s purpose was to experiment and create a final form for licensing approval. Minaj had no intention to release “Sorry” and bring the product to market without a license. As to the fourth factor, no evidence was provided to prove that Minaj’s work would usurp any potential market for Chapman. Chapman’s argument that “Sorry” was created for commercial gain was not enough to establish market harm, the court reasoned that private experimentation with a copyrighted work to later secure a license does not impact the market for the original work. The court reinforced its reasoning by pointing to the public benefit of allowing artists to continue the common practice of experimenting with existing material before obtaining a license. Judge Phillips wrote that “[a] ruling uprooting these common practices would limit creativity and stifle innovation within the music industry… [which] is contrary to Copyright Law’s primary goal of promoting the arts for the public good.”

The court’s conclusion that Minaj's use of Chapman’s song to create new work did not violate copyright laws further protects the creative process most artists undertake when creating their original compositions.