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Unspoken Terms

Sep 24, 2020

Casey is an entertainment and digital media law attorney who helps influencers and creative entrepreneurs who struggle with navigating the legal side of their businesses and brands, specifically as it relates to contracts. She prides herself on helping creatives negotiate fair deals with Fortune 500 companies and leading entertainment brands, all while helping them build legally sound businesses that are built for generational wealth and impact. Here on the podcast, she normally does that through sharing the stories of successful entrepreneurs and influencers to help you learn from their mistakes. But occasionally, like today, switches things up and highlights popular culture. 



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4 Key Takeaways


1. When it comes to copyright infringement, it is a balancing act. The purpose of IP law is to cultivate creativity - “Artists usually experiment with works before seeking licenses from rights holders and rights holders typically ask to see a proposed work before approving a license,” the judge wrote. “A ruling uprooting these common practices would limit creativity and stifle innovation within the music industry.” A finding in Chapman’s favor, they argued, “would impose a financial and administrative burden so early in the creative process that all but the most well-funded creators would be forced to abandon their visions at the outset.” The judge agreed, finding that on balance Minaj was protected by the “fair use” doctrine.


2. Know your industry! In this case, seeking permission after the work was created was deemed ok because of industry standards. This may not fly in your line of work. Explicitly expressed intentions and terms are necessary when dealing with anyone (even friends and family) in business.


3. It pays to ask permission before getting into the creative process (that way time is not “wasted” when the end product can not be released)


4. Maintaining confidentiality in the creative process - A dispute remains, however, as to whether Minaj infringed on Chapman’s song by sending “Sorry” to DJ Flex. Chapman’s lawyers asked the judge to find that the distribution constituted copyright infringement as a matter of law, but the judge ruled that the dispute would have to go to a jury.


Show Notes


[6:16] – Update from the Volvo IG Dispute


  • Volvo’s motion to dismiss was denied. 


  • Jack Schroeder and Britni Sumida in June sued Volvo after it used images from their shoot in the southern California desert in an Instagram story in violation of their rights (copyright and publicity, respectively). Volvo, in its motion to dismiss the complaint, argued that Schroeder granted an implied license by posting the photos on Instagram. The court didn’t analyze a lot of the arguments but it did note that it felt both parties had successfully stated a claim for copyright infringement. It hasn't yet analyzed its argument that Instagram's terms of service provided a license in this situation.


Related Article:


[10:00] – A brief background of the dispute:


  • Tracy Chapman, a hugely successful singer-songwriter, is suing Minaj (real name: Onika Maraj) for allegedly infringing her own work, "Baby Can I Hold You." Both sides have filed summary judgment papers. And in Chapman's view, this is an easy case. Minaj's actions were "indisputably willful," states the plaintiff's motion seeking a win.


  • The legal dispute between Chapman and Minaj is a bit different from most copyright cases where litigants quarrel over whether works are substantially similar. Here, there appears to be no controversy that "Sorry" emanates from "Baby Can I Hold You," nor much discussion about whether Chapman's work is actually original enough to merit protection. But that doesn't end matters. When "Sorry" was selected for inclusion on Minaj’s Queen album, Minaj and her reps sought a license to Chapman's composition. One of the clearance specialists put on the task is said to have known that Chapman was on the “do not sample list”— an unwritten list of artists that were well-known for not allowing samples of their works. Minaj's team made efforts anyway, but Chapman rejected a request.


Related article:


[14:46] – Current status of the Nicki Minaji lawsuit:


  • The judge ruled in Nicki’s favor on the primary issue of when artists must seek permission from copyright owners in the creative process. The case is still going because of other issues. 


Related Article:


[16:18] – Key Takeaways


  • Copyright infringement is a balancing act. The law must be balanced with the purpose of the creative process.
  • You need to be intimately familiar with the industry standards that apply to your line of work!
  • In more industries it pays to just ask permission first.
  • Make sure that you maintain confidentiality in your creative process.


Resources mentioned during this episode:

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