December 06, 2013 9:37am PT by Eriq Gardner
Jay Z in Legal Hell Over Sampling of 1960 Egyptian Film Tune
Jay Z is having an even tougher week than most people realize. He's not only dealing with baseball general managers and enduring social media snark for his handling of second basemen Robinson Cano, but he's also battling Egyptians.
The sports agent and hip-hop superstar has just failed in a bid to wrap up a six-year-old lawsuit over the sampling of "Khosara, Khosara," from the 1960 Egyptian film Fata Ahlami, used on his 2000 mega-hit song, "Big Pimpin," which Rolling Stone once named as one of the top 500 songs of all time.
Here's the video for the song with the instantly recognizable sampled hook as a refresher:
The case is immensely complicated, but as we've detailed before, involves the nephew of late Egyptian composer Baligh Hamdi, who argues that Jay Z mutilated the original song, violated "moral rights," and despite the existence of a settlement agreement that appeared to give "Big Pimpin" producers a valid license, infringed a copyright.
Since the song came out so long ago -- even longer than the filing of the lawsuit in California federal court -- some of the key issues in this case have been the application of statute of limitations and laches, otherwise known as an unreasonable delay in pursuing a right or claim.
The judge in the case previously granted summary judgment in favor of Jay Z and other defendants -- including MTV Network, Paramount Pictures and Warner Music -- for activity before August 31, 2004, three years before plaintiff Osama Ahmed Fahmy brought his lawsuit. The judge ruled that statute of limitations precluded any recovery of damages over so long ago.
The judge also found in previous rulings that laches barred claims for the "interim" time period between March 30, 2001 to 2006. The first date is when "Big Pimpin" producers executed a settlement with EMI, which once asserted rights to "Khosara, Khosara" based on an agreement with the Egyptian outfit Sout El Phan. The latter date is when the deal between EMI and Sout El Phan expired.
In a new ruling on Tuesday, U.S. District Judge Christina Snyder won't reconsider those orders. We won't get into the reasoning, but for lawyers, there's an interesting discussion of a 9th Circuit judgment involving Bob Marley music rights.
Jay Z and the other defendants hoped to wrap up this case altogether, but then there is the issue of allegedly infringing activity happening after 2006, when the EMI-Sout El Phan agreement expired and "Big Pimpin" defendants arguably no longer could point to a settlement agreement as freeing their liability for among other things, Jay Z's exploitation of the song in concerts, in films, and on television.
The judge had previously granted summary judgment on this "post-expiration period" too on the basis of laches and more. Even if the defendants were aware of the fact that the agreement expired, the court previously concluded that it would only support the conclusion that Jay Z and others willfully infringed Sout El Phan's rights. There would be nothing to suggest that they were aware of infringing Fahmy's rights.
But in asking for reconsideration, the plaintiff argued there is no authority that a finding of willful copyright infringement requires knowledge of the true identity of the copyright holder.
"The Court finds plaintiff’s argument persuasive," writes Judge Snyder. "Further discovery is appropriate because plaintiff need only show that defendants knew that they were infringing some copyright in 'Khosara Khosara' in order to defeat laches; plaintiff need not show that defendants were aware that they were infringing plaintiff’s copyright."
As a result, Jay Z is not off the hook over his hook. And the judge won't yet dismiss MTV, Paramount, Warner Music and many other defendants either.