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It’s now been eight years since Shawn “Jay Z” Carter was first sued for allegedly lifting an Egyptian tune for his mega-hit “Big Pimpin.” On October 13, he is scheduled to defend himself at trial. But the proceeding is potentially being delayed over what Jay Z’s side frames as the other side’s “gamesmanship.”
In court papers on Friday, defendants told the judge they’ve learned that the plaintiff, Osama Ahmed Fahmy — the nephew of Baligh Hamdi, whose composition “Khosara, Khosara” is at the heart of the copyright lawsuit — won’t be attending the trial. They say they were noticed that Fahmy was experiencing a “medical condition” and that instead of appearing live, Fahmy’s testimony would come via a six-year-old deposition.
This isn’t acceptable, they say.
“Plaintiff’s eleventh-hour gambit is an obvious attempt to avoid cross-examination at trial,” states the defendants’ legal brief. “It should not be sanctioned by this Court.”
In the lawsuit, Fahmy is asserting that Jay Z, Tim “Timbaland” Mosley, EMI, Universal Music and others don’t have rights to use “Khosara.” The defendants argue otherwise, pointing to a licensing agreement with an Egyptian outfit that had worked out an arrangement with Hamdi’s heirs. Old deal work, as well as an interpretation of a licensing contract under Egyptian law, will be the centerpiece of the liability phase of the trial, which is why Jay Z’s lawyers want him to appear in court.
The defendants’ lawyers say they received a “note ostensibly from a doctor in Egypt, yet written in English. Shockingly, the note is dated September 13, 2015 — three days before the September 16, 2015 pretrial conference. It states vaguely that Mr. Fahmy has a heart condition, that he is ‘currently’ unstable and that he cannot ‘travel by airplane for long distance.’ The note indicates that the Plaintiff’s condition is longstanding — there is no indication of new or recent changes which affect his ability to travel.”
The defendants are accusing Fahmy’s side of “concealing” this information until the very last moment before trial. They want to delay the trial so they can have a chance to depose him, or in the alternative, preclude use of the six-year-old deposition.
The plaintiffs likely need Fahmy’s testimony to demonstrate he held onto the rights to approve of use of “Khosara.” If they can show this, plus demonstrate that “Big Pimpin” is a copyright infringement and not fair use of “Khosara,” the trial would move to a damages phase where there could be discussion of Jay Z’s revenue over the past 15 years since his hit came out. This includes his concert deal with Live Nation, which the defendants have likened to the secretive Coca Cola formula.
UPDATE 10/9: The judge has denied Jay Z’s bid to delay the trial. It will begin Tuesday.
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