5:45pm PT by Ashley Cullins
Jay Z, Timbaland Attorneys Call Out Racial Insensitivity in "Big Pimpin'" Copyright Appeal
Jay Z and Timbaland won big last fall during a copyright trial over "Big Pimpin,'" but their attorneys are on the offensive again, claiming an appeal of the decision is filled with illegitimate grievances and exacerbated by a reference to the KKK.
The legal battle began in 2007, when the heir of Egyptian composer Baligh Hamdy sued the duo, along with just about every individual and company associated with the 1999 song. The heir, Osama Fahmy, claimed "Big Pimpin'" infringed on his rights to Hamdy's 1957 song "Khosara Khosara" by sampling it without permission.
Last fall, U.S. District Judge Christina Snyder stopped the trial before the jury could deliberate, finding Fahmy didn't have standing to pursue the claims because he had given up his rights in the work. In February, she entered her final judgment and dismissed the suit with prejudice.
Fahmy appealed the ruling in August. In a 64-page opening brief, attorney Keith Wesley argues that the district court erred in finding Fahmy lacked standing to sue.
Wesley says Fahmy licensed "Khosara Khosara" to another Egyptian man named Mohsen Jaber, but reserved the right to approve derivative works — albeit through Egyptian law instead of a standard contractual provision.
He used a jarring analogy to explain the Egyptian concept of moral rights in a work. What if, he posits, the "famous two-note ostinato from Jaws" were used in a recruitment video for the Ku Klux Klan? Had John Williams retained the right to approve derivative works in his licensing agreement, Wesley argues, he would have standing to sue the film's director. By his logic, Fahmy should have the same standing to sue that Williams would.
Attorneys for Jay Z and Timbaland were not amused by the hypothetical scenario.
"His comparison of an expressive work of fiction created by pioneering African-American artists and performed in a distinctly African-American musical art form to a non-fiction promotional vehicle for a white supremacist group that 'imposed a veritable reign of terror' on newly freed African-Americans in the post-Reconstruction South for decades — using violence such as cross-burning, lynching, arson, and whippings — demonstrates a high degree of racial insensitivity that crosses the line of responsible advocacy," states the reply.
Further, they argue that Fahmy's interpretation of the law would open U.S. courts "to a flood of moral rights claims not recognized in this country."
"Any Egyptian moral right Plaintiff retained is not enforceable in the United States and did not limit or modify Plaintiff’s complete worldwide transfer under the 2002 Agreement of all exclusive economic rights in Khosara," states the reply. "In arguing otherwise, Plaintiff misrepresents the law and attempts to eviscerate the fundamental distinction between moral rights (not enforceable in the U.S.) and freely transferable economic rights, which include the right to create and prevent derivative works."
Wesley is asking the 9th Circuit to remand the case to the district court for a new trial before a different judge, claiming that Snyder demonstrated bias against his client.
Jay Z is represented by Andrew Bart and Daniel Rozansky. Timbaland, and the other co-defendants, are represented by Christine Lepera and David Steinberg. Fahmy is also represented by Peter Ross.