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In testimony Wednesday in the trial over the song’s iconic sample, his opponent’s attorney inquired why he and producer Tim “Timbaland” Mosley didn’t ensure they had the rights to the song, the Egyptian tune “Khosara Khosara,” before they released the single.
“I didn’t think there was a sample in it,” said Jay Z (real name Shawn Carter). “Timbaland presented me with a track. I didn’t even think about there being a sample,” he continued, noting Timbaland is known for rarely sampling.
The rap mogul finished testimony in one afternoon in a Los Angeles courtroom on the second day of the trial, which opened eight years after Osama Fahmy, a nephew of “Khosara” composer Baligh Hamdi, filed one of the longest running (and most complicated) current lawsuits in the country.
Fahmy claims Jay Z and Timbaland produced and continue to distribute the song, which Rolling Stone rated in the 500 greatest songs of all time, without the rights to “Khosara Khosara.” The trial is set to cover unusual subjects including how to interpret a licensing deal with respect to understanding under Egyptian law of an author’s “moral rights” and whether one Arabian record company’s license on the song included the right to “sublicense.”
In testimony, Jay Z described how the song first took form when he visited Timbaland (riffing about their relationship, to laughter: “He tells me his beats are better than my raps, I tell him my raps are better than his beats, and I keep winning”).
He listened to some of Timbaland’s beats that he considered “just OK,” he said, and got his coat to leave. Then the producer played him a beat featuring the “Khosara Khosara” sample. He promptly set his coat down, and they finished a rough version of “Big Pimpin‘ ” right there, he continued.
Questioned by Fahmy attorney Peter Ross on why he didn’t check out the “Khosara Khosara” rights, he replied, “That’s not what I do. I make music.”
Jay Z’s attorney Andrew Bart had him elaborate. “I make music, I’m a rapper, I’ve got a clothing line, I run a label, a media label called Roc Nation, with a sports agency, music publishing and management. Restaurants and nightclubs … I think that about covers it,” said Jay Z.
“I’m not so sure. You have a music streaming service [Tidal], don’t you?” inquired Bart.
“Yeah, yeah. Forgot about that,” quipped Jay Z.
Pressed by Ross on why he continued to sell the song on his greatest hits collection released after the lawsuit brought in 2007, he sounded vague. “There’s a number of things that occurred. At some point there was a claim brought and then it was cleared up, and the rights were granted,” he said, likely referring to a deal music publisher EMI made with an Egyptian outfit that had its own deal with Hamdi’s heirs. “I was under the understanding we had a license.”
He often doesn’t personally clear samples, he continued, noting he reached out to The Doors to use one of their songs on his 2001 hit “Takeover.”
“There’s a team of hundreds of people, [clearing samples] is their job,” he continued. “That’s not my job.”
In Timbaland’s testimony Wednesday, the producer spoke in more detail about the sample. He said he found “Khosara Khosara” on a CD of “license free” music, though Fahmy attorney Keith Wesley pointed out he could only remember the CD supposedly was license free, not the names of any other songs or the name of the CD.
He elaborated on the agreement he and Jay Z reached in 2001 with EMI Arabia, which claimed rights from a deal with Middle Eastern record label Sout El Phan. “EMI reached out to my lawyers, who got in touch with me and said, ‘there’s a red flag,'” he said.
When Wesley pressed him on whether he separately investigated whether EMI Arabia had the rights to grant him the song, he repeated he had followed what his attorneys (“legal”) told him.
“Legal just told me, ‘$100 grand and you’re clear,'” he said.
The plaintiff argues the rights were not EMI’s to give. In pretrial proceedings, they’ve held EMI Arabia received a license for itself, but could not “sublicense” the composition to others, and furthermore the license did not include the Egyptian “moral rights” permitting others to edit or repurpose the composition.
Timbaland and Jay Z’s attorneys, of course, have argued EMI properly transferred the rights in 2001.
“Would you have paid EMI $100,000 if there was any doubt in your mind what they said in the document was false?” Timbaland’s lawyer Christine Lepera inquired.
“No,” he said. “I thought I was free and clear.”
The producer’s testimony very nearly included a concert (like Robin Thicke gave in his own copyright trial earlier in the year).
In a move to demonstrate the relative unimportance of “Khosara Khosara” in “Big Pimpin,’” Timbaland’s attorneys brought out a keyboard for the producer to compose a beat in the courtroom, but technical problems with the keyboard interfered.
What did the jury hear instead? Timbaland “beatboxing” — simulating a hip-hop beat entirely vocally — to demonstrate the importance in his productions of the beat, not the samples.
Oct. 13, 5:55 p.m. Updated with Timbaland’s testimony.
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