Since hip-hop’s earliest days, experimenting with the limbs of older songs and reaminating them inside of new records has existed. This process, commonly referred to as sampling, is rap’s blood, and across the genre’s history — from The Notorious B.I.G.’s “Juicy” to Cardi B and Megan Thee Stallion’s “WAP” — it has defined the music, giving artists the means to recycle classics and obscure gems alike, into even bigger records.
However, with the advent of sampling has also come many, many music copyright lawsuits, especially for rap music. Nineteen years ago, sampling in hip-hop was forever changed when De La Soul was sued by the Turtles for using their song “You Showed Me” on “Transmitting Live From Mars.” The band’s lawsuit charged that “De La Soul used a four-bar section of the Turtles song (lasting 12 seconds) and ‘looped’ it so that the riff served as the music for the entire 66 seconds of the De La Soul piece.” The case was settled out of court, with former Turtles members Howard Kaylan and Mark Volman reportedly receiving as high as $1.7 million (although De La claim they never paid that much). But this landmark case made producers hesitant with how they sample moving forward.
“Rap artists believed this ruling set a dangerous precedent that would bankrupt them due to licensing or legal fees and would ultimately destroy hip-hop,” Rolling Stone said of the suit. “The case precipitated a steady decline in sampling as labels grappled with the financial and logistical headaches of ensuring all artists were properly paid and credited.”
Now, a lawsuit Tracy Chapman has against Nicki Minaj could set yet another dangerous precedent for rap music. Tracy Chapman’s lawsuit stems from the bungled release of Minaj’s “Sorry” in 2018. The rapper’s song, which samples Chapman’s 1988 track “Baby Let Me Hold You,” was supposed to appear on her fourth studio album, Queen, but she was unable to get it cleared. After recording a new version with Nas (who is featured on the song), Nicki elected to keep the song off the album altogether after requests to Chapman, both privately and publicly, were at first rejected, and then unanswered.
On the day following Queen’s release, radio DJ Funkmaster Flex played “Sorry” anyway, apparently getting it from Minaj’s team. Tracy Chapman immediately issued DMCA takedown notices for copyright infringement, after fans, who heard the song when it played, ripped it and uploaded it around the internet. Soon after, Tracy Chapman formally sued Minaj for copyright infringement, with the singer’s attorney, John Gatti, saying “[Minaj] violated Ms. Chapman’s copyright by creating an illegal derivative work and distributing that work.”
The outcome of this suit has the potential to change hip-hop’s fascination with sampling, and thus the genre itself. Since the song wasn’t officially released, and songs are easier than ever to leak thanks to hackers who gain access to the files, there could be serious financial implications for anyone who doesn’t get a song cleared before it makes its way to the internet.
In a court brief, Nicki’s lawyer wrote Eric George wrote:
“In the process of creation, no one approaches the original songwriter for a license to experiment. The musicians just experiment. If something works, and the recording artist wants to release the song commercially, then the record label, managers, and attorneys get involved and seek the required permission. If it is granted, the recording is commercially released. If permission is denied, the recording is discarded; no one is harmed; and the experimentation begins anew. Recording artists require this freedom to experiment, and rights holders appreciate the protocol as well.”
To understand what’s at stake for hip-hop, Okayplayer spoke with Karl Fowlkes, Esq., a music lawyer and music industry professor at Rowan University, who has gotten samples cleared from artists like Donnell Jones and Roger Trouman.
The interview was conducted over email.
Prior to this lawsuit, what was the last big legal situation involving sampling?
The one that I’m thinking of is Katy Perry’s case involving Christian rapper Flame. It’s certainly the most important decision over the past couple of years.
[That suit] cut hard against creatives. For one, it said that basic chords are protectable. There was a sequencing in the song that was elementary, and the court ruled that it was protectable. In hip-hop, a lot of basic chords sound the same, so having to argue about what’s protectable and what isn’t means that it’s a dangerous time right now.
What are Tracy Chapman’s chances of actually winning this lawsuit, and why?
I don’t think Tracy Chapman’s chances are too good because Nicki Minaj never commercially released the song. This is a weird case because no one is actually fighting the validity of the interpolation. Here, Chapman is challenging whether a song even has to be commercially released by the artist or label to be held liable for infringement involving a sample. That is an extremely dangerous notion. Imagine having to clear a sample before even playing around with it — that just doesn’t make sense. Creativity would be stifled.
How do you envision this lawsuit playing out?
I think that it will ultimately result in Nicki Minaj’s favor. An opposing ruling would severely undercut the essence of creation because of the nature of hip-hop. People send uncleared records to others all the time to get feedback and perspective. If those songs leak, should the artist be held liable? Did the artist really commercially distribute the work? No and no.
Why didn’t Hot 97 or Funkmaster Flex get hit with the lawsuit?
I would think that they are just as at fault as Nicki. But Nicki Minaj is probably the easier target and they probably think that Nicki told the station to play it. Hot 97, in my opinion, should be targeted in this case.
How do sampling laws create issues between original artists and those that look to sample them?
I don’t really think there is any real issue, especially if an artist follows the proper procedures to clear a sample. Once you properly find the owners of the record you are trying to clear, it is a very streamlined process, especially if you are backed by a major label. The real problems come when the sample owners either aren’t interested in clearing the sample at all or are proposing unconscionable terms.
What do you think is the reason that artists don’t like to clear samples for?
I still don’t think that hip-hop has enough respect. Some people cut against the genre when it comes to sampling requests, and also just want to leave their work alone. The reality in this situation is that Tracy Chapman could have sat tight and made thousands, maybe hundreds of thousands more dollars by accepting the sample clearance.
If Tracy Chapman were to win this lawsuit, what does that mean for sampling moving forward?
This would be a horrific ruling with real implications toward hip-hop. Samples are a part of the DNA of hip-hop, and if artists feel like there is a risk of lawsuit by even just recording a song that uses a sample, we will see even less samples. Again, the real danger here is that Nicki nor her label commercially released the “song” in question. What’s the real harm by one radio play here? Additionally, I think artists now have to really exercise control over unreleased records. If one gets out to the public, especially if you played any role in allowing it to be played on airwaves, you could become the target of legal scrutiny.
What would you have advised Nicki Minaj to do differently in this scenario, and do you feel she’s at fault?
If she couldn’t get the record cleared, I wouldn’t have sent it to the radio person to play it. This is the only part of this scenario that cuts against her.
Trey Alston is a Virginia-based writer for Pitchfork, Complex, and MTV News.
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