By: Maggie Horstman

After sampling became common practice in the late 1980s, disputes pertaining to this technique were often settled out of court.[1] Laws surrounding sampling were not thoroughly considered by a judge until 1991, when Gilbert O’Sullivan sued Biz Markie for sampling his song “Alone Again (Naturally) in the case Grand Upright Music, Ltd. v. Warner Bros. Records, Inc.”[2] The judge determined Biz Markie violated copyright law, and the parties subsequently settled for $250,000 in damages and agreed Warner Brother’s would stop selling the album.[3] Similar cases followed, and now artists need to clear samples, regardless of how short.[4]

This case paved the way for artists like Tracy Chapman to sue household names like Nicki Minaj for sampling a song without permission. In October of 2018, Chapman sued Minaj in Los Angeles Federal Court, claiming the rapper illegally sampled one of her songs, “Baby Can I Hold You,” and leaked the song to radio DJs without clearing the rights.[5] Chapman claimed that Minaj’s representatives contacted her to clear the rights to the song after it had been recorded, but she refused.[6] While the song was removed from Minaj’s album, it was later purposefully leaked.[7] Minaj denied liability for leaking the song and said she was not responsible for it being played on air.[8]

Because Minaj denied any part in leaking the song, her argument was based on fair use.[9] In a subsequent motion, Minaj argued that fair use protected her experimentation in the studio and that this protection is necessary for artists to decide if they want to use the sample in a released song.[10] The motion stated that:

Recording artists require this freedom to experiment, and rights holders appreciate the protocol as well…. Often, the rights holder does not want to simply approve a use in the abstract – i.e., ‘any hip hop version of your song’. The rights holder wants to hear the actual version before giving permission.[11]

In response, Chapman wrote that Minaj’s argument was not grounded in caselaw and was based on the unsubstantiated premise that copyright liability should only apply when a someone has been denied permission to use a work.[12]

The federal judge hearing the case determined that the fair use doctrine covered Minaj’s private experimentation with the song, but that Minaj still could face liability for the song’s subsequent release.[13] A jury would have had to decide whether Minaj was involved in leaking the song.[14] Minaj finally agreed to settle for $450,000 on January 7, 2021, stating that going to trial would have cost more than Chapman’s offer of judgment.[15]

Chapman is reportedly one of many artists on an unofficial “Do Not Sample” list who have historically refused to grant licenses to other artists.[16] While some believe these artists deserve to protect their music as much as they want, others argue that sampling goes beyond the pure copying of a song.[17] Original Public Enemy member and hip-hop producer Shocklee once explained,

The reason why we sampled in the beginning was that we couldn’t afford to have a guitar player come in and play on our record.  We couldn’t afford to have that horn section…or the string sections.  We were like scavengers, going through the garbage bin and finding whatever we could from our old dusty records.[18]

Conversely, today, hiring a live artist to play on a recording would likely be less expensive than paying for the right to sample someone’s song.[19]

While sampling was commonplace in the past, the cost of clearing the rights to a short snippet of a song prevents many artists from creative freedom. Unless artists are the right combination of talented and lucky, like Summer Walker was to land a collaboration with Usher for her song “Come Thru” (sampling Usher’s 1997 hit “You Make Me Wanna”), they must rely solely on their own music.[20] These circumstances have led many to ask: is the heavy regulation of music licensing encouraging creative security or creative suppression?

[1] Oliver Wang, 20 Years Ago Biz Markie Got the Last Laugh, NPR (May 6, 2013),

[2] 780 F. Supp. 182 (S.D.N.Y. 1991).

[3] See Grand Upright Music, Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182, 185 (S.D.N.Y. 1991); Wang, supra note 1; Chuck Philips, Songwriter Wins Large Settlement in Rap Suit: Pop Music: Following a Court Ruling, Biz Markie and Warner Bros. Agree to Pay Gilbert O’Sullivan for Rapper’s ‘Sampling’ of ‘Alone Again (Naturally)’”, L.A. Times (Jan. 1, 1992),

[4] See Erik Nielson, Did the Decline of Sampling Cause the Decline of Political Hip Hop?, The Atlantic (Sep. 18, 2013), (stating albums like De La Soul’s Three Feet High and Rising, which used a large amount of samples, were soon almost impossible to produce because of the cost of clearing).

[5] See Bill Donahue, Tracy Chapman Sues Nicki Minaj Over Radio Leak, Law360 (Oct. 23, 2018),

[6] Id.

[7] Id.

[8] See Bill Donahue, Tracy Chapman, Nicki Minaj Battle Over Fair Use in Radio Leak, Law360 (Aug. 25, 2020),

[9] See id.

[10] See id.

[11] Def.’s Mot. Summ. J. ECF No. 57, at *1.

[12] Pls.’ Opp. Mot. ECF No. 67, at *6.

[13] See Bill Donahue, Nicki Minaj Pays Tracy Chapman to End Copyright Fight, Law360 (Jan. 8, 2021),

[14] See id.

[15] See id.

[16] See Benjamin Lee, Nicki Minaj to Pay $450,000 to Tracy Chapman for Copyright Suit, The Guardian (Jan. 8, 2021),; Anastasia Tsioulcas, Tracy Chapman Wins Lawsuit Against Nicki Minaj, NPR (Jan. 8, 2021),

[17] See Hannah Harris Green, De La Soul’s New Album Puts a New Spin on the Sampling Controversy, VICE (Apr. 3, 2015), (interviewing Posdnuos, original member of De La Soul, who said that sampling occurs whether you are making your own samples to draw from or using someone else’s music, and either way it goes beyond copying and creates “magic”).

[18] See Nielson, supra note 4.

[19] See Hannah Harris Green, supra note 17 (explaining that, in 2015, De La Soul hired a variety of musicians, who created hours of music for them to sample from, to avoid being sued for sampling unlicensed music).

[20] See Claire Shaffer, Summer Walker, Usher Release Steamy ‘Come Thru’ Video, RollingStone (Jan. 7, 2020),

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