6:49pm PT by Austin Siegemund-Broka
Jay Z Faces Key Decision in "Big Pimpin'" Sample Trial
By tomorrow, Jay Z could be off the hook for what could be his best-known hook.
Judge Christina Snyder might decide Tuesday or Wednesday if the rapper and producer Timbaland “Tim” Mosley were in their rights to excerpt the Egyptian tune "Khosara Khosara" for the opening of Jay Z’s "Big Pimpin'," she said Tuesday.
The ruling would conclude early the trial in which the rapper, whose real name is Shawn Carter, and the producer have defended the song from "Khosara" composer Baligh Hamdi's nephew Osama Fahmy. Fahmy argues they could not sample his uncle's song without permission under the Egyptian concept of "moral rights."
The trial opened a week ago, with testimony Wednesday from Jay Z and Timbaland on their working relationship (“He tells me his beats are better than my raps, I tell him my raps are better than his beats, and I keep winning,” joked Jay Z) and the deal with music publisher EMI in 2001 they thought entitled them to "Khosara Khosara."
The week included testimony from musicologists, international copyright attorneys and reps for other defendants, who include record companies Universal Music Group and Warner, Paramount (for distributing the Jay Z concert film Fade to Black) and rock band Linkin Park, which included "Big Pimpin'" in a collaborative album with Jay Z and whose bassist, Dave Farrell, took the stand Friday.
It could go to the jury in the coming week, or it could end soon if Snyder decides "moral rights" do not cover the Jay Z hit.
Whether “moral rights” apply is one of the core disputes of the case, which Fahmy filed eight years ago (the lawsuit is one of the country's longest currently running).
The concept is not nonexistent in the U.S. but is narrow in scope. In Egypt, "moral rights" are the permanent rights of creators to contest in court "distortions" or "mutilations" of their work, even when they’ve licensed "economic rights" of reproduction and adaptation to others.
Fahmy contends when Hamdi's family signed all economic rights for “Khosara Khosara” to the record company Sout El Phan in 2002, they did not lose moral rights. (Experts in Middle Eastern law for both sides have confirmed the family never could cede moral rights. "Those are rights that belong to your identity," the defendants' expert Walid Farhad said Thursday.)
Sout El Phan licensed much of its catalogue, including "Khosara Khosara," to EMI for worldwide outside Egypt. Timbaland explained how in 2001 (two years after he and Jay Z recorded the song with what they thought was a rights-free sample), EMI approached him and Timbaland with a claim on “Khosara Khosara,” leading the producer to license the song from EMI.
But Fahmy’s counsel argues the right to change "Khosara Khosara" without Hamdi's heirs' permission should be considered a discrete right Sout El Phan never had. Therefore, EMI never received the right from Sout El Phan nor conferred the right on Jay Z. “You can’t give away a right you don’t own,” Fahmy's lawyers Peter Ross and Keith Wesley have repeated in court.
Jay Z and Timbaland’s lawyers respond the moral rights have stayed with Hamdi’s family, but also have stayed in Egypt, not become applicable wherever Sout El Phan licenses the song.
They haven’t traveled with EMI’s license for everywhere outside Egypt, say the defendants. "We were not transferring rights for Egypt, so we were not concerned by [moral rights],” said EMI former counsel Chris Ancliff on Thursday.
“Mr. Fahmy could have said, ‘I'm assigning rights [to Sout El Phan] only in Egypt.' But he didn't. He said, 'I'm assigning rights worldwide,'" said the defendants' laywer David Steinberg. "He can't pick up his [moral rights] shield and take it to the United States, take it to Canada."
Central to whether Jay Z and Timbaland infringed on Fahmy's rights, then, is whether Egyptian law applies to their deal with EMI. "It's not just, what is Egyptian law. It's, what is U.S. law, and what is the interplay of the two when dealing with something not exploited in Egypt," said Steinberg.
The judge intended to let the jury decide on the question of infringement according to their interpretation of Egyptian law. Then she would apply her own judgment on the application of Egyptian law, even if it meant rejecting the jury’s conclusion. The defendants’ lawyers argued this would be inefficient and increase the likelihood of an appeal.
"If the jury is effectively deciding Egyptian law is X, and your honor says it's Y, we could have a number of other jury decisions based on an erroneous understanding of Egyptian law," said the defendants' lawyer Christine Lepera.
Snyder was swayed. She will decide on two central question of the case, whether Hamdi's heirs gave Sout El Phan the right to license samples and whether Egyptian law should apply to EMI’s contracts, before the final question of whether infringement occurred goes to the jury, she said Tuesday.
If she decides Egyptian law cannot apply, Fahmy will not have much for the jury to consider. "We don't have to have the jury deliberate if we've already lost the case," said Ross in court.
Snyder likely will issue her decision (and jury instructions and verdict forms if applicable) by Wednesday or in court Wednesday morning.