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Since releasing his mega-hit song, “Big Pimpin,” which Rolling Stone named as one of the top 500 songs of all-time, Jay-Z and that many companies he’s done business with (Warner Bros., EMI, Paramount, MTV, UMG, etc.) have been swamped with litigation from various Egyptians who claim the hip-hop star infringed their instantly-recognizable underlying hook.
The rapper has had a mixed record defending these claims. On one hand, an Egyptian man who claims a valid license over the musical composition “Khosara, Khosara,” which was used by Jay-Z in his chart-topper, has repeatedly been unsuccessful in attempts to show that he has standing to pursue a lawsuit. On the other hand, another Egyptian man, the nephew of Egyptian composer Baligh Hamdy, who originally wrote the tune for the 1960 Egyptian film Fata Ahlami, has experienced much more success.
So much so that a coming trial might soon examine whether Jay-Z will have to hand over to this Egyptian, Osama Ahmed Fahmy, a percentage of his recent revenue from concerts.
We previously covered this fascinating situation last May.
Hamdy’s heirs licensed the “Khosara, Khosara” tune in 1995, and Jay-Z believed he had a valid agreement to exploit the song. But Egyptian copyright law leans heavily on a concept known as “moral rights,” which not only confer economic ownership to authors over a work, but also the ability to control the fate of works.
The Egyptians who claim ownership of “Khosara, Khosara” were aghast at Jay-Z’s “Big Pimpin,” feeling that the rapper had ruined the song. If Jay-Z wished to “mutilate” the original song by sampling it, looping it and adding his lyrics, they argued, he needed to get their permission.
One of the individuals bringing claims was Ahab Joseph Nafal, who got his own license from Hamdy’s heirs. However, his license has been deemed to be non-exclusive, so various judges have not allowed him to bring claims due to his lack of standing. On Friday, Nafal’s most recent attempt at a lawsuit was dismissed by a California federal judge. Nafal argued that he had finally attained “100% of an exclusive license” over the original song, but the judge said that wasn’t good enough — that Nafal could only join the copyright owners in bringing a claim.
That would be Fahmy, who proved to a different judge last May that he indeed had standing to pursue a copyright infringement case, applying Egyptian law against Jay-Z and other defendants.
Since that decision, both Fahmy and Jay-Z have brought motions for partial summary judgment.
In his own motion, Jay-Z argued that Fahmy had been aware of the “Big Pimpin” alleged infringement since 2000, and so the statute of limitations had run its course.
The defendant gave several reasons why the statute of limitations should be tolled, from the fact he was an Egyptian who spoke little English to being allegedly misled by EMI’s attorneys to the whole Nafal situation. Ultimately, the judge decided last December that Jay-Z was right, that the plaintiff had more than enough time to bring this lawsuit sooner.
But that doesn’t end the case. It only means that Fahmy can only collect revenue from three years prior to the 2007 filing of the lawsuit to now.
If that’s merely record sales, it might be a limited amount. “Big Pimpin” came out more than a decade ago, and probably a bulk of the sales came in its first couple of years on the marketplace. But potentially more is at stake.
In Fahmy’s own motion for partial summary judgment, the plaintiff argued that if he ends up being successful at trial, Jay-Z should have to pay him a portion of his concert receipts since the rapper likely continues to perform one of his biggest hits and continues to infringe the moral rights to “Khosara, Khosara.”
Against Jay-Z’s objection to this argument, California judge Christina Snyder has ruled that it is a triable issue whether profits from the concerts are directly or merely indirectly attributable to “Big Pimpin.” In other words, would concert goers be attending Jay-Z performances if they knew he wasn’t performing the song? Our guess is that the rapper’s lawyers can trot out fans who would say yes, but who knows, maybe the plaintiff’s lawyers can point to fans who would give a few bucks extra to hear the crowd-pleasing hook.
In the decision, Judge Snyder wrote:
“This case may be more akin to the infringing use of copyrighted songs as part of a larger musical revue, an infringing use of a painting in a textbook, and one infringing poem contained in a poetry anthology, than the infringing use of copyrighted text or images to promote season tickets for the symphony, or the sale of a car — but that is up to a jury to decide.”
A trial date hasn’t been set yet.
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