Copyright, the great Tracy Chapman and a pay-out from Nicki Minaj

In many cases, a Claimant whose copyright work has been infringed will not only wish to obtain relief for the damage and loss suffered but also wish for the court to grant injunctive relief. An injunction in the context of intellectual property is where one party can ask the court for it to prevent an imminent infringement, or to forbid the continuation of the alleged infringement. An injunction must also be effective, proportionate and dissuasive and should be applied in such a manner as to avoid the creation of barriers to legitimate trade. These are requirements as set out in legislation.

Usually, a Claimant will submit that it is entitled to an injunction to restrain the Defendant (whether acting directly or indirectly by procuring or encouraging others to act) from infringing the copyright works, registered UK Trade Mark and the Community Trade Mark, and from passing off its goods and services as and for the Claimant’s.

There must also be no special reason not to grant an injunction but note that just because a Defendant claims to have stopped is not always sufficient to prevent a court from granting this. This is indeed applicable where a defendant says it has stopped but refuses to sign an agreement (called undertakings) that it will not infringe again. In the case of EMI (IP) Ltd v British Sky Broadcasting Group Plc, the words “special reasons” in the context of Article 104 of the TM Regulation were said to relate to the factual circumstances specific to the given case. This is an interesting case and would need consideration if you wish to apply to the court for injunctive relief.

A Claimant will still argue in its application to the court for an injunction that it is not unreasonable to seek such relief where the Claimant’s main source of revenue stems from its trade marks or copyright works. Online trading is a key point to note on this, especially when considering the well-known case of Twentieth Century Fox Film Corporation v Newzbin Ltd. In this case, the activities of members on a website that acted as an intermediary for its members to download and share films. By illegally making the copyright works available to the public in this regard, it cut off online revenue for Twentieth Century Fox. The conduct of the Defendant will be considered by the court as well so worth noting when making this application.

Now all the above is very important to get the context of the types of considerations that the lawyers for Nicki Minaj would have been advising could happen if they do not try and settle the matter to avoid a trial. There are also limitations and the sums accepted by a claimant are also important to ensure whether these are proportionate in the circumstances before accepting.

Nicki Minaj has therefore agreed, according to federal court documents, to pay an out of court settlement to Tracy Chapman in the sum of $450,000. This was after Tracy Chapman took action against the pop star for allegedly using a song by Tracy Chapman called Baby can I hold you on one of her tracks titled ‘Sorry’ featuring Nas. This appears to be a more frequent occurrence for musicians these days and has caused headaches across the globe for alleged copyright infringement by one artist using another’s work.

In this instance, the law was on Chapmans side, or so it seems. It may be that Nicki Minaj was simply advised to pay Chapman off to avoid any further trail or to avoid a possibility of an injunction or other form of remedy. Although it seems that Minaj’s lawyers argued that artists should be free to create work based on existing material, without fearing legal action from the original artist when pursuing license.

Minaj’s lawyers also argued the following: ‘Such free-flowing creativity is important to all recording artists, but particularly in hip hop. With that category of music, a recording artist typically goes into the studio and experiments with dozens of different ‘beats’ or snippets of melodies, before hitting upon a pleasing combination.’

Despite these arguments, and other considerations given by a pre-trial judge, the winner in this case was Chapman who also successfully claimed legal costs of an undisclosed amount in addition to her pay-out of $450,000.

We are always taking calls and negotiating on behalf of client who allege that someone has infringed their copyright. We will not charge for initial advice so if you are concerned that someone has infringed on your rights, do not hesitate to contact us or send us a website enquiry.

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