Creating a Version of a Work Solely for “Artistic Experimentation and to Seek License Approval from the Copyright Holder” = Fair Use
Minaj’s song “Sorry” obviously takes from Chapman’s song “Baby Can I Hold You.” Nobody disputes that. Minaj and her people asked Chapman for permission during and after production of “Sorry,” and Chapman and her reps said no, multiple times. So Minaj didn’t release the song on her 2018 album….
[But t]he unauthorized song got out. Chapman’s attorneys say Minaj leaked it to a New York DJ, Funkmaster Flex, who then played it. Minaj’s attorneys dispute that. Either way, it got on the air, and then on the internet.
And Chapman sued, saying Minaj shouldn’t have been allowed to make the unauthorized song in the first place, even as a demo.
If Minaj did leak the new song to Flex (who wasn’t sued, perhaps because his playing of the song would be covered by a blanket license), then she might well be liable; but the court concluded that the factual dispute on this has to be resolved by a jury. The question thus remained: Was Minaj’s merely recording her version of Chapman’s song an infringement of Chapman’s right to prepare and record derivative works—or was it saved from infringement by the copyright “fair use” defense?
On that question, Judge Phillips held that the law was on Minaj’s side:
The parties … do not dispute that Maraj never intended to ex
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