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After a dramatic first round of appellate filings, complete with Ku Klux Klan references, attorneys for the heir of an Egyptian composer are steering his legal battle with Jay Z and Timbaland over “Big Pimpin‘” away from sensational analogies and back to the issue of moral rights.
The decade-long legal battle centers on a sample of Baligh Hamdy’s 1957 work “Khosara Khosara,” which was used in “Big Pimpin.'” U.S. District Judge Christina Snyder cut a 2015 trial short, finding Hamdy’s heir Osama Fahmy lacked standing to pursue the claims because he had given up his rights in the work by licensing it.
In an appeals court brief filed Wednesday, Fahmy’s attorney Keith Wesley argues that his client may have licensed the economic rights to “Khosara” but, under Egyptian law, he could not have given up his moral rights to “prevent unauthorized fundamental alterations” to the work — and the only relevant question is whether he can enforce that right in the U.S.
In many other countries, including Egypt, the owner of the rights in an artistic work has some control over what kinds of adaptations can be made to it. Fahmy argues that Jay Z’s rhymes about hoes, drugs and spendin‘ cheese are morally objectionable and he has the right to keep his ancestor’s work from being associated with it — but the concept of moral rights generally isn’t recognized the U.S.
“[S]etting aside semantics and dicta (and accusations and invective), this case boils down to a rather unremarkable proposition: Plaintiff owns, under the law of the country of origin of his copyright (Egypt), the right to protect his copyright from fundamental changes, and the U.S. Copyright Act (17 U.S.C.,106(2)) recognizes the right owned by Plaintiff and expressly prohibits Americans from violating Plaintiff’s right,” writes Wesley.
Therefore, he argues, Fahmy should be able to sue for copyright infringement in “the only court that would have the power to stop Defendants’ extensive, continuing, unauthorized, and (yes) vulgar and unfortunate distortion of Plaintiff’s work in America.” (Read the brief in full below.)
Wesley is asking the 9th Circuit to grant Fahmy judgment as a matter of law in regards to whether Jay Z and Timbaland are liable for copyright infringement, even though Snyder didn’t reach the issue.
The artists argue that they paid to use the sample, but Fahmy says they didn’t have a right to fundamentally change the work. Fahmy licensed “Khosara” to an Egyptian company named Sout el Phan, which then licensed certain rights to EMI Music Arabia, which reached an agreement with Timbaland after “Big Pimpin‘” was released.
“The language of Plaintiff’s agreement with Sout el Phan did not clearly and unequivocally convey the right to make or authorize changes to Khosara,” writes Wesley. “If Sout el Phan did not own the right to control fundamental changes to Khosara, then Sout el Phan could not have validly conveyed that right to EMI Music Arabia. Thus EMI Music Arabia’s agreement not to sue Defendants is irrelevant because EMI Music Arabia did not own the right that Defendants are violating.”
Wesley not only wants the case remanded for a new trial, he also wants a new judge. This time around he kept the reasoning vague, but in his opening brief he argued that Snyder expressed or implied bias against his client and managed the case unfairly and inefficiently — noting, specifically, that “no civil case should take over eight years to go to trial.”
Fahmy is also represented by Peter Ross and Corbin Barthold of Browne George Ross. Jay Z is represented by Andrew Bart and Daniel Rozansky of Jenner & Block. Timbaland, and the other co-defendants, are represented by Christine Lepera and David Steinberg of Mitchell Silberberg & Knupp.
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