Is musical experimentation fair use or copyright infringement? CHAPMAN v. MARAJ

A copyright is a set of exclusive rights granted to the creator of an original work of expression. A creator can register their copyright with the library of congress to strengthen the rights associated with the copyright, but registration is not required for the author to be granted a copyright to their work. Copyright grants a creator the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement. A copyright owner can file a lawsuit for an injunction to stop copyright infringement and to get monetary damages for copyright infringement which has occurred.

The exclusive rights granted to a copyright owner are not unlimited. Fair use is an element of copyright law that excuses a defendant from liability for copyright infringement. Fair use exists because copyright law is intended to promote the advancement of the arts and sciences, a fair use of copyrighted matter is a use that promotes advancement.

35 U.S.C. Section 107 Limitations on exclusive rights – states that fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. Section 107 gives four factors to be considered when a fair use defense is raised. The four factors judges considers in a fair use defense are: (1) the purpose and character of your use (2) the nature of the copyrighted work (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market.

Determining whether a use qualifies as a fair use is a fact specific determination. It is helpful to study court precedent to predict how a court will rule given a specific set of facts.

CHAPMAN v. MARAJ, 2:18-cv-09088 (C.D.CA 2020) is a case where the experimental creation of a song was found to be a fair use.

Plaintiff in this case the copyright for the song “Baby Can I Hold You”. Defendant Onika Tanya Maraj, professionally known as Nicki Minaj, wanted to remake the song in her own style. Defendant created an experimental remake of Plaintiffs song. Defendant knew that she needed the license the rights for the song before she could release her own version so she went out of her way to obtain a license. Defendant originally thought that a different artist created the song, however it turned out that Plaintiff was the original creator. Defendant made multiple requests to Plaintiff for a license, but Plaintiff denied each request. Because Defendant could not obtain a license she did not release her experimental remake song to the public.

At some point a third party named DJ Flex obtained a copy of Defendant’s experimental remake and released it to the public. Defendant claims she did not authorize the release. Plaintiff sued Defendant for copyright infringement claiming that the experimental remake song violated Plaintiff’s right of distribution and right to create derivative works. Defendant motioned for summary judgement on the theory that her creation of the experimental remake song qualified as a fair use.

The trial court reviewed each of the fair use factors in turn. The court concluded that the initial purpose of Defendant’s work was experimentation and that this was common because copyright holders typically want to see a work before consenting to a license. Given that Defendant never intended to exploit the work without a license, Defendant’s use was not purely commercial. The nature of the copyrighted work, disfavored fair use because the Composition is a musical work, which is core work copyright is intended to protect. The third factor, the amount and substantiality of the portion used in relation to the work as a whole, favored fair use. Defendant’s new work incorporated many lyrics and vocal melodies from the original, however the court found that no more than necessary was used in the new work.”

The fourth factor, the effect of the use upon the potential market, favored fair use because there was no evidence Defendant’s work negatively impacted the market for Plaintiff’s work. Balancing all these factors together, the court found Defendant’s use was fair, that Defendant did not infringe Plaintiff’s right to create derivative works, and granted partial summary judgment in favor of the Defendant.

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