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
4 Key Takeaways
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.
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.
It pays to ask permission before getting into the creative process
(that way time is not “wasted” when the end product can not be
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.
[6:16] – Update
from the Volvo IG Dispute
- Volvo’s motion to dismiss was
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.
[10:00] – A
brief background of the dispute:
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.
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.
Current status of the Nicki Minaji lawsuit:
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.
[16:18] – Key
- Copyright infringement is a balancing act. The
law must be balanced with the purpose of the creative
need to be intimately familiar with the industry standards that
apply to your line of work!
more industries it pays to just ask permission first.
sure that you maintain confidentiality in your creative
Resources mentioned during this episode: