IP law in the creative field is meant to protect against the commercial exploitation of someone's work by non-rightsholders, but what happens if the infringing work in question is never meant to see the light of day but gets out anyway?
That's the question at the heart of a lawsuit brought by singer-songwriter Tracy Chapman against the pop star Nicki Minaj over copyright infringement. Chapman accuses Minaj of using her song "Baby Can I Hold You" in creating the song "Sorry" back in 2017. And on that point, there's no disagreement between plaintiff and defendant as to the use of Chapman's work in the song in question.
Instead, Minaj's defense takes a different tact, and in evaluating the approach it's worth examining the timeline of events as laid out in THR. In 2017 Minaj worked with the rapper Nas in creating "Sorry" for possible inclusion on her forthcoming album Queen, but when she and her team were unable to secure the rights to use "Baby Can I Hold You" it was ultimately left off the album.
Had that been the end of the matter there would likely be no court case, but in 2018, as the album was being released, Minaj reached out to producer and radio host Funkmaster Flex over Instagram about the song, which subsequently found its way onto his radio show and the radio station's Instagram page, and as these thing go, onto the wider internet. It was that proliferation that would prompt Chapamn's lawsuit.
Minaj's defense in the matter is to argue that artists should be free to experiment in the studio, including sampling the works of others, making the case that so long as the recordings aren't widely distributed it can't be considered infringing. She and her team further argue that it's often the case that sampled artists want to hear the final product of the song they're sampled in before giving their permission, so Minaj was simply following a common practice in creating the song and then seeking the rights.
That leaves the matter of its release, however. While Minaj can claim some distance from its radio plan and subsequent dissemination, it's not much distance; the circumstances as laid out make a case that Minaj wanted the song out there, and while the recording itself may have been undertaken with he best of intentions, failing to secure the rights doesn't permit the circumvention of the law. Ultimately, she may owe more than a "Sorry" to Tracy Chapman.