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After almost a decade in court, Jay Z has finally won dismissal of a copyright claim brought over a sample used in the 1999 hit “Big Pimpin‘.”
This past October, the hip-hop star, along with his composer Tim “Timbaland” Mosley and various music companies, prevailed at trial against Osama Fahmy, whose uncle composed “Khosara Khosara,” a tune from a 1960 Egyptian film and the source of the iconic hook in “Big Pimpin‘.” U.S. District Judge Christina Snyder stopped the proceedings before it even got to a jury verdict by deciding the plaintiff did not have standing to pursue the lawsuit.
Though the defendants experienced success at trial, the case wasn’t quite over just yet because the issue of standing is not so simple. Especially, not in a dispute that stirred international copyright debate.
The Egyptian composer’s heirs made a licensing agreement to an Egyptian company that in turn sublicensed to EMI, which then provided a sub-sub license to Jay Z and Timbaland. But Fahmy contended that under Egyptian law, the heirs held onto “moral rights,” here meaning the authority to permit — or reject — alterations to the original.
At trial, in ruling in favor of Jay Z, Snyder concluded that because this is America, a plaintiff may only pursue a claim in court based on infringement of economic rights, not moral rights. Thus, no standing. But was the judge saying that Fahmy had no standing because he couldn’t allege injury (constitutional standing) from use of the sample or because he had no copyright interest (statutory standing) to begin with?
This might seem like splitting hairs, but if the first reason, then the judge lacked jurisdiction to reach the merits of the plaintiff’s case, and theoretically, a new or amended lawsuit could be brought. At a December hearing, the judge reportedly told the parties that she was leaning in this direction.
But now comes the final judgment, where Snyder writes, “In the instant case, the Court determined that plaintiff had assigned all of his economic rights in Khosara to Jaber and therefore was not ‘[t]he legal or beneficial owner of an exclusive right under a copyright.'”
Fahmy’s attorney argued that regardless, these issues were all tied together, that because there was no assertion of actual damages (such as lost sales), the court was making a determination about the sole injury asserted — violation of rights.
The judge admits that Fahmy might be onto something, but nevertheless steps around the argument by saying there have been allegations of actual damages being suffered in the case.
A rather complicated and nuanced legal discussion (see the opinion here), but the end result is that the judge is dismissing this case with prejudice. On the plus side for Fahmy’s lawyers, who have pursued this case for so long with hopes of getting a piece of the substantial fortune earned by “Big Pimpin‘,” the judgment now primes the way for an appeal, which Fahmy attorney Keith Wesley previously told The Hollywood Reporter is the intention.
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