BY: ALEXIA MICKLES

Whether you loved the 2012 smash “Starships,” absolutely loathed it, found yourself singing or dancing to it at the bar, or wanted it to die with the rest of modern pop music, the fact remains, Nicki Minaj’s hit set a Billboard record when it sat in the “Top 10” for twenty-one straight weeks after its release last year.[1. Haley Blum, Nicki Minaj Sued by Musician Over “Starships”, USA Today (Sept. 12, 2013, 6:09 PM), http://www.usatoday.com/story/life/people/2013/09/12/nicki-minaj-sued-over-starships/2806617/.] But recently, the song has gotten even more attention – from Clive Tanaka (…who?), claiming to be the original author of the musical composition.[2. Jason Meisner, Reclusive Musician Sues Pop Star Nicki Minaj, Chicago Tribune (Sept. 11, 2013), http://articles.chicagotribune.com/2013-09-11/entertainment/chi-nicki-minaj-lawsuit-20130910_1_robin-thicke-redone-nadir-khayat.]  Now the real question is whether or not Minaj will join the historical list of musicians (like the Beatles’ George Harrison) who have been snagged on copyright infringement claims.[3. Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177, 180 (S.D.N.Y. 1976). Harrison infringed copyright with his song “My Sweet Lord,” due to its substantial similarity to “He’s So Fine,” recorded by the Chiffons. The court there found it irrelevant tha Harrison did not intend to fringe. All that mattered was he had access to “He’s So Fine,” as it was No. 1 on the Billboard charts for five weeks, and his song was “substantially similar” to the original composition. Actually, the judge in that case found it “perfectly obvious to the listener that in musical terms, the two songs are virtually identical except for one phrase.”]

The club hit, “Starships,” written by Minaj, top producer RedOne (born: Nadir Khayat, known for writing hits for other huge stars such as Lady Gaga, and Pitbull), Carl Falk, Wayne Hector and Rami Yacoub (collectively referred to as “authors”), were all named as co-defendants in the lawsuit.[4. Meisner, supra, note 2.]

In general, there are a few things needed to prove copyright infringement of a sound recording or musical work.[5. 17 U.S.C. § 102 (2012).] First, Clive Tanaka must prove he had a valid copyright to his song.[6. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).]   Second, he must prove “Starships” is “substantially similar” to “Neu Chicago.”[7. Id.] And third, that Minaj and authors had access to his song before “Starships” was written.[8. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. Cal. 2000). (Circuit Courts actually differ on how and to what extent the “access” element should be applied – if at all. This is just to give you a general idea of what a court looks at.).] The third prong might be easy to prove, as three of the songs’ writers were citizens of Sweden at a time when “Neu Chicago” was being used in TV commercials prior to the release of “Starships,” accrording to the Chicago Tribune.[9. Meisner, supra, note 2.]

The almost imaginary electro “star” Tanaka filed suit against Minaj in United States federal District Court in Chicago on Tuesday, claiming she used portions of his 2011 track “Neu Chicago.”[10. Id.]  Tanaka is an artist who, although very well may be talented, apparently refuses to perform live.[11. Id.] Let’s face it, most artists won’t get too far in the music industry without live performances and/or appearances.

This leads to the ultimate question: why now? Tanaka released “Neu Chicago” in 2011. “Starships” was a 2012 hit. As of early September of this year, Tanaka filed suit for copyright infringement.[12. Id.]  Unless he was living under a rock, there’s no way he didn’t hear “Starships” before now. In fact, it’s certain he heard the song last year – and even mixed it with his song and published it to his SoundCloud account.[13. Clive Tanaka, Neu Starships?, SoundCloud (Oct. 22, 2013), https://soundcloud.com/clivetanaka].  Maybe he was proving a point by playing the two tracks alongside one another, attempting to show the world the similarity between the works. Even so, he had to have gained some benefit from “Neu Starships?” (the title of his “compilation”).[14. Id.]

Tanaka’s mix and the delay of this suit, might lead some people to believe he was waiting for the perfect time to commence this action. Not only is this unraveling after “Starships” received universal accolades, but also after he mixed it with his own song in a possible attempt to gain popularity.[15. Id.]

This is not the first time Minaj has been sued – a drummer claimed his reputation was tainted when an image of him appeared in a documentary about Nicki in 2010.[16. Jason Lipshutz, Nicki Minaj MTV Documentary Provokes Lawsuit from Street Drummer, billboard (Mar. 30, 2011, 2:55 PM), http://www.billboard.com/articles/news/472284/nicki-minaj-mtv-documentary-provokes-lawsuit-from-street-drummer.]  Most likely this suit will be settled out of court – but it does give current popular artists a warning: illegal sampling, no matter how much or how little, will not be tolerated even by the most reclusive artists/authors.