In brief - US copyright infringement case provides opportunity to look at the Australian "fair dealing" defence and is a reminder that there is no such thing as a defence of "fair use" in Australia

"Sorry, is all that you can say".

Following a copyright claim brought by Tracy Chapman in respect of Nicki Minaj's unreleased song Sorry, Minaj was required to do more than just apologise.1  

The outcome might have been worse for Minaj had she not successfully defended part of the claim on the basis of "fair use". 

The Sorry state of affairs

In the lead up to releasing her 2018 album Queen, Minaj recorded a song, Sorry, which sampled part of Chapman's song Baby Can I Hold You. Chapman refused all requests from Minaj for a licence to sample the song. As a result, Minaj did not include the song on Queen. However, Sorry was leaked to DJ Flex of Hot 97 Radio in New York, who played it on 11 August 2018. 

In late 2020, a US District Court Judge decided in Chapman v Maraj that Minaj's creation of the song was allowed under the fair use doctrine. However, there was not enough evidence to decide on the issue of whether the distribution of the song on Hot 97 Radio was also allowed. 

Before the matter came before the Court again, the parties agreed on a settlement.

What does "fair use" in US copyright law mean

Copyright Law of the United States (Title 17) allows copyright-protected works to be used without a licence in certain circumstances. To decide whether the fair use doctrine applies, under section 107 a court must consider factors which include the following:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Importantly, this list of factors is not exhaustive. A court is free to consider other factors in addition to those above. 

Section 107 of US Copyright Law lists criticism, comment, news reporting, research, scholarship and teaching as examples of acceptable purposes or uses. However, this is also not an exhaustive list, and a purpose which is not included in this list may still be considered "fair use". 

In the Minaj and Chapman case, the Court found that Minaj's purposes in creating Sorry were (1) artistic experimentation, and (2) to seek license approval from the copyright holder (see page 29). Even though these are not included as examples of acceptable purposes in US Copyright Law, they were considered to be "fair use" by the Court.

"Fair dealing" doctrine in Australian copyright law

There is no such thing as a defence of fair use in Australia. It is not uncommon to see references to fair use in the Australian context. It seems likely this reflects a lack of understanding as to how fair dealing operates in Australia.

The Australian "fair dealing" doctrine is much less flexible than its American counterpart. The Copyright Act 1968 (Cth) (the Australian Act) lists a specific set of purposes for which the use of copyrighted works will not be an infringement. It is a closed list - no purpose or use which is not included in the law can fall under the fair dealing exception.

The main purposes listed in the Australian Act, under sections 40-42, 103A-103C and 113E-113F, are:

  1. research or study;

  2. criticism or review;

  3. parody or satire; 

  4. reporting news; and

  5. access by persons with a disability.

If a court is satisfied that a work was created for one of the purposes included in the Australian Act, it must then determine whether the use was "fair". If both of these tests are met, the creator of that work will not be liable for any copyright infringement.

Fair dealing defences in Australia

Australian courts have generally taken a narrow approach to fair dealing defences. For example, the parody and satire defence will not be effective if it is "used as a shield to avoid intellectual work in order to benefit from the notoriety of the parodied (or satirised work)".2  For instance, using "humorous" versions of copyrighted works on t-shirts does not amount to fair dealing where the use is for profit and not legitimate parody of a work.3 

Due to this narrow approach, fair dealing will not be available as a defence against copyright infringement unless the work was created for one of the purposes listed in the Australian Act. This has often been the case with copyright disputes over songs. 

A well-known local example from the past decade was the dispute over the Men at Work song Down Under, which was held to have copied a substantial part of the song Kookaburra Sits in the Old Gumtree.4  In making their decision, the judges acknowledged that the use of part of Kookaburra was intended more as a tribute, rather than copying for the sake of laziness.5 This can be contrasted to Minaj's "sampling" of Baby Can I Hold You. In Australia, the manner or spirit of the infringing conduct is irrelevant if it does not fit within the defined categories of fair dealing. 

It seems likely that a fair dealing defence would not have assisted Nicki Minaj had the matter been run in Australia. The specified purposes do not extend to artistic experimentation or seeking a license. It is hard to see how this use could fit within any of the other categories. 

This article commenced with a lyric from Minaj's Sorry and Tracy Chapman's original song Baby Can I Hold You. It might be worth the reader's time to consider which of the categories of fair dealing that use might fit within.

Main take-away 

The US doctrine of fair use is more flexible and broader than the Australian doctrine of fair dealing. 

Users of unlicensed copyright works should be careful to consider the extent to which the fair dealing defence may come to their aid. It is not sufficient to rely upon broad notations derived from the American copyright law.

Endnotes

Daniel Kreps, 'Nicki Minaj Reaches Settlement With Tracy Chapman in "Sorry" Lawsuit', Rolling Stone (online, 8 January 2021) <https://www.rollingstone.com/music/music-news/nicki-minaj-tracy-chapman-settlement-sorry-lawsuit-1111631/>. 
2 Productions Avanti Cine-video v Favreau (2012) 177 DLR (4th) 568, 594.
3 Pokémon Company International Inc v Redbubble Ltd (2017) 351 ALR 676, 715 [69].
4 EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 FCR 444.
5 Ibid [99], [226].

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

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