Chicago Musician Sues Nicki Minaj Over Copyright Infringement

By Chuck Sudo in Arts & Entertainment on Sep 11, 2013 1:40PM

Nicki Minaj onstage at the 2013 BMI R&B/Hip-Hop Awards at Hammerstein Ballroom on August 22, 2013 in New York City. (Photo by Neilson Barnard/Getty Images for BMI)

A Chicago musician known for his painstakingly crafted electronic music filed a copyright lawsuit against pop star and wig model Nicki Minaj Tuesday. An attorney for Clive Tanaka filed a lawsuit in federal court in Chicago Tuesday claiming Minaj lifted liberally from the hooks in his 2011 song “Neu Chicago” for her 2012 hit “Starships.”

The suit names Minaj, producer RedOne (real name Nadir Khayat) and three songwriters credited with writing “Starship with Minaj: Carl Falk; Rami Yacoub; and Wayne Hector. Tanaka’s attorney Christopher Niro told the Chicago Tribune RedOne, Falk, Hector and Yacoub are Swedish citizens and may have heard “Neu Chicago” in television ad campaigns for a clothing retailer and a beverage company in that country. (Read the full lawsuit here.)

"We believe they are similar to the point that it is nearly impossible for it to be a coincidence," Niro said.

Let’s see for ourselves, shall we?

Here's Minaj's "Starships"

Here's Clive Tanaka's "Neu Chicago"

Tanaka even put together a mashup of the two last year to highlight their similarities. "Neu Chicago" plays on the right channel and "Starships" on the left.

That's over 12 minutes of my life I wasted listening to the two songs. While the two songs blend well together, proving copyright infringement may be tough.

In order to prove copyright infringement, the plaintiff must prove ownership of the copyright in the allegedly infringed work and copying of the work by the defendant. Assuming that the plaintiff is the proper owner, all that now needs to be proved is that the defendant copied the work. In a simple case, if the defendant admitted that they obtained a copy of the work and ran off copies of the work on a photocopier, this would be enough to find the defendant guilty of copyright infringement. This, however, is not the usual case, and there is rarely such solid proof of copying.

Because of this, courts have evolved a rule for finding copyright infringement when there is no proof of direct copying. Copying can be proven by showing both access to the work and substantial similarity of the allegedly infringing work to the copyrighted work. If the defendant can show there was no access to the work and, in fact, the work was created independently, there will be no copyright infringement even if the works appear to be an exact copy. Also, if the defendant knew about the work, but it is substantially different from the allegedly infringing work, there is no liability for copyright infringement.

Access to the work can be proved by showing that the defendant actually viewed and had knowledge of the copyrighted work or had a reasonable opportunity to view or have knowledge of the work. Again, it may be difficult to prove that the defendant actually saw the copyrighted work. Courts have found a "reasonable opportunity to view the work" where one employee of a corporation had possession of the work and another employee created the allegedly infringing work. Similarly, in a famous case, a song was found to be copied when it was a top ten hit; thus, the composer of the allegedly infringing song most likely heard the song on the radio.

Substantial similarity in the works is a highly fact-intensive inquiry and varies from case to case. Obviously, trivial similarities between the works will not be sufficient; on the other hand, two works need not be identical in order to find substantial similarity. The courts have developed several different tests to determine whether two works are substantially similar, with some of the tests applying to specific types of works, such as music, books, and motion pictures. In some of these tests, expert opinions are obtained. For example, in copyright infringement lawsuits involving musical works, testimony from a musicologist or a professional musician may be obtained to assist the court in determining whether two works are substantially similar.

Let's ask you: Does Tanaka have a case here?