Artistic license or licence license#

The private purposes exception does not apply where a reproduction of a musical work embodied in a sound recording was made onto an audio recording medium, which is a recording medium consumers ordinarily use to reproduce sound recordings. In Canada, the private purpose exception applies if (i) the work reproduced from is not an infringing work (ii) the individual legally obtained the work (iii) the individual did not circumvent technological protection measures (iv) the individual did not give away the reproduction and (v) the individual used the reproduction for private purposes.Ī Canadian court would need to consider whether experimenting with a musical work for the purpose of determining whether the user wanted to sample the work in a new work constitutes a “private purpose”. Significantly, Minaj argued that her use of the Composition (in addition to being “fair”) was a reproduction for private purposes, and therefore did not constitute copyright infringement. A Canadian court may have considered whether Minaj’s modification of the Composition prejudiced Chapman’s honour or reputation. Moral rights include the right to integrity and the right of attribution. If this was a Canadian case, Chapman might argue that sampling her Composition infringes her moral rights. Though there are differences between Canada’s fair dealing and the US’s fair use, 1īoth concepts grant users the freedom to use copyrighted expression without the owner’s permission.Ĭanada has a unique set of parallel rights to copyright called moral rights. The court held the evidence Chapman relied on in respect of distribution (i.e., playing the New Work on the radio station) raised disputes as to the material facts and are more appropriate for a jury. The court also dismissed Chapman’s motion. The Court also noted the New Work constituted fair use because (i) as creative works, musical compositions are at the core of copyright protection (ii) while the New Work included most of the Composition’s lyrics and melodies, Minaj used no more than necessary and (iii) there was insufficient evidence to show the New Work would harm the Composition’s market value, as it was only experimental. Requiring such a practice to avoid liability for copyright infringement “would limit creativity and stifle innovation within the music industry.” Artists usually provide a copy of the derivative work in their application for a license, which the copyright owner often requests. It is common industry practice for artists to experiment with copyrighted works before obtaining a license. The Court warned of the chilling effect a finding of copyright infringement would have on the industry.

Artistic license or licence license#

The Court made this finding because (i) Minaj initially used the Composition to experiment with a remake, (ii) Minaj intended to obtain a license before publishing the New Work, and (iii) Minaj did not publish the New Work when the license was refused. While the sampling was found to be incidentally commercial, Minaj did not use the Composition for commercial purposes. Minaj used the Composition to experiment with a view to securing a license. On the experimentation issue, the Court held the New Work constituted fair use. Minaj denied giving the New Work to the radio host and claimed the experimentation constituted fair use. Chapman claimed Minaj infringed her copyright by creating the New Work and distributing it to the radio host who played it. The parties brought cross-motions for partial summary judgment. However, Chapman commenced a claim for copyright infringement after the New Work aired on a radio show. Minaj did not publish the New Work on her album. Minaj experimented with Sorry to determine its suitability for a remake.Īfter learning that Sorry was a cover of Chapman’s Composition, Minaj applied for a license to publish the remake of Sorry (the New Work) on her upcoming album.

At the time, Minaj was unaware that Sorry was a cover of the Composition. In 2017, Minaj collaborated with Nasir bin Olu Dara Jones (aka Nas) to remake Shelly Thunder’s song Sorry.

Here, we consider the Court’s decision and other copyright principles a Canadian court may consider if the case was litigated in Canada. The Court confirmed the legality of the industry practice of experimenting with another artist’s musical work before applying for a license. In September, the Court granted the vocalist Nicki Minaj partial summary judgment, finding that her experimentation with Tracy Chapman’s Baby Can I Hold You (the Composition) constituted fair use, the American equivalent of Canada’s fair dealing copyright doctrine. The United States District Court for the Central District in California (the Court) recently gave a significant win to music samplers.