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In October, Shawn “Jay Z” Carter is primed to go to a trial to defend himself from accusations of illicitly sampling an Egyptian composition for his 2000 mega-hit “Big Pimpin.”
The long-running case is in the final pretrial stretches, which means Osama Ahmed Fahmy, the plaintiff and nephew of the Egyptian composer, and the many defendants (Jay Z, Timbaland, EMI, Universal Music, Paramount Pictures, MTV, etc.) are debating what evidence will be heard by a jury.
One of the motions made by Jay Z attorney Andrew Bart is to preclude evidence and arguments relating to the superstar’s financial condition. It’s argued that Jay Z’s wealth — recently estimated at $550 million by Forbes — is irrelevant and attempt by Fahmy’s lawyers to “bias the jury” and “artificially inflate the size of a potential damages award.”
On Monday, Fahmy’s attorneys argued that Jay Z’s financial condition was indeed relevant as it would go to intent. The plaintiff used an analogy to spell out this theory.
“For example, compare two hypothetical infringers of a plaintiff’s copyright in a film,” they wrote. “One is a peasant living in a remote area of Russia. The other is a billion-dollar film studio. A reasonable juror may find that, because of the peasant’s ‘financial condition,’ the limited steps he took to ensure he was not infringing were reasonable, whereas the same steps taken by the film studio were consistent with a finding of recklessness or willful blindness. The infringers’ respective ‘financial conditions’ would be highly relevant to whether they exercised due care in ensuring they were not infringing upon the plaintiff’s copyright.”
The plaintiff adds that a jury’s finding of willfulness will be important because it would side-step the issue of whether Fahmy prejudiced the proceedings by waiting too long to sue. The judge is also told that willfulness would impact damage calculations if a jury decided to award plaintiffs a portion of “Big Pimpin” profits.
Bart responds this is an “obvious ruse.”
“There is no conceivable reason that Defendants’ wealth or financial resources would make it more or less likely that they infringed Plaintiff’s supposed copyright in Khosara,” says the defendants’ papers. “Nor is it relevant to Plaintiff’s claim for lost profits; indeed, the Ninth Circuit has squarely held that courts may not determine the amount of lost profits by looking to a defendant’s ‘overall gross revenue, without regard to the infringement.’”
U.S. District Judge Christina Snyder is set to hear arguments at a hearing scheduled for September 16 along with debates over evidence related to experts, attorney advice, merchandise and concert revenues, the applicability of Egyptian law, the licensing value of “Khosara” and more.
Fahmy is represented by Peter Ross, Keith Wesley and Jonathan Gottfried at Browne George Ross.
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