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In Brief – The US copyright infringement case provides an opportunity to examine Australia’s ‘fair dealing’ defense and reminds that there is no ‘fair use’ defense. fair “in Australia
“Sorry thats all you can say“.
Following a copyright claim filed by Tracy Chapman regarding the unreleased song by Nicki Minaj sorry, Minaj had to do more than just apologize.1
The outcome could have been worse for Minaj if she had not successfully defended part of the claim on the basis of “fair use”.
The sorry state of affairs
In preparation for the release of his 2018 album Queen, Minaj recorded a song, sorry, who sampled part of Chapman’s song Baby can I hold you. Chapman refused all of Minaj’s requests for a sampling license for the song. As a result, Minaj did not include the song on Queen. However, sorry was leaked to Hot 97 Radio’s DJ Flex in New York City, which aired it on August 11, 2018.
In late 2020, a U.S. District Court judge ruled Chapman vs. Maraj that the creation of the song by Minaj was authorized under the fair use doctrine. However, there was not enough evidence to decide whether the song’s distribution on Hot 97 Radio was also permitted.
Before the case returned to court, the parties agreed to a settlement.
What does “fair use” mean in US copyright law?
Copyright law of the United States (Title 17) allows the use of copyrighted works without a license in certain circumstances. In deciding whether the fair dealing doctrine applies, under section 107, a court must consider factors that include the following:
- the purpose and character of the use, including whether the use is commercial in nature or for non-profit educational purposes;
- the nature of the copyrighted work;
- the quantity and importance of the part used in relation to the protected work as a whole; and
- the effect of the use on the potential market or the value of the copyrighted work.
Importantly, this list of factors is not exhaustive. A court is free to consider other factors in addition to the above.
Section 107 of the US Copyright Law lists criticism, commentary, reporting, research, research, and teaching as examples of acceptable purposes or uses. However, this list is also not exhaustive, and an objective that is not included in this list can still be considered “fair use”.
In the Minaj and Chapman case, the Court concluded that Minaj’s objectives in creating sorry were (1) an artistic experiment and (2) a request for 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 “fair dealing” by the court.
The doctrine of “fair dealing” in Australian copyright law
There is no fair use defense in Australia. It is not uncommon to see references to fair use in the Australian context. It seems likely that this reflects a lack of understanding of how fair dealing works in Australia.
Australia’s “fair dealing” doctrine is much less flexible than its American counterpart. The Copyright Act 1968 (Cth) (Australian law) lists a specific set of purposes for which the use of copyrighted works will not violate. This is a closed list – no purpose or use that is not included in the law can fall under the fair use exception.
The main purposes listed in Australian law, Articles 40-42, 103A-103C and 113E-113F, are:
research or study;
criticism or review;
parody or satire;
news report; and
access for disabled people.
If a court is satisfied that a work was created for one of the purposes included in Australian law, then it must determine whether the dealing was “fair”. If these two criteria are met, the creator of this work will not be responsible for any copyright infringement.
Defense of fair use in Australia
Australian courts have generally taken a narrow approach to fair dealing defenses. For example, the parody and satirical defense 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 satirized) work”.2 For example, using “humorous” versions of copyrighted works on t-shirts is not fair dealing when the use is for profit and not a legitimate parody of a work.3
Due to this narrow approach, fair dealing will not be available as a defense against copyright infringement unless the work was created for one of the purposes listed in Australian law. This has often been the case with song copyright disputes.
A well-known local example from the last decade was the dispute over the song Men at Work Down Under, who would have copied a substantial part of the song Kookaburra is in old Gumtree.4 In rendering their decision, the judges recognized that the use of part Kookaburra was designed more as a tribute, rather than a lazy copy.5 This can be compared to Minaj’s “sampling” Baby can I hold you. In Australia, the manner or spirit of the infringing behavior is irrelevant if it does not fall within the defined categories of fair use.
It seems likely that a fair use defense would not have helped Nicki Minaj if the case had been conducted in Australia. The purposes specified do not extend to artistic experimentation or the search for a license. It’s hard to see how this use could fit into any of the other categories.
This article started with a lyric from Minaj’s sorry and the original song by Tracy Chapman Baby can I hold you. It might be worth spending the reader time to figure out what categories of fair use this might fall into.
The American fair dealing doctrine is more flexible and broader than the Australian fair dealing doctrine.
Users of unlicensed copyrighted works should be careful to consider how the fair use defense can help them. It is not enough to rely on broad notations derived from US copyright law.
1 Daniel Kreps, ‘Nicki Minaj Reaches Settlement with Tracy Chapman in’ Sorry ‘Trial, Rolling stone (online, January 8, 2021) https://www.rollingstone.com/music/music-news/nicki-minaj-tracy-chapman-settlement-sorry-lawsuit-1111631/>.
2 Productions Avanti Cine-vidéo v Favreau (2012) 177 DLR (4th) 568, 594.
3 Pokémon Company International Inc v Redbubble Ltd (2017) 351 ALR 676, 715 .
4 EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 RCF 444.
5 Ibid , .