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The legal dispute over Jay-Z’s 1999 mega-hit, “Big Pimpin,” has been an epic one that has stretched on for more than a decade, been unsettled by a Supreme Court ruling and raised fundamental issues related to differences in international law with respect to intellectual property. The latest development came Thursday when the 9th Circuit Court of Appeals affirmed a win for Shawn “Jay-Z” Carter and other defendants, including producer Tim “Timbaland” Mosley, by refusing to give a suing Egyptian the ability to enforce moral rights over a sample used for “Big Pimpin.” The decision matters beyond music as many foreign countries confer moral rights to creators of copyrighted works. On Thursday, a federal appeals court drew a line against allowing foreigners to protect the integrity of their works through U.S. courts.
Jay-Z’s “Big Pimpin” gets its crowd-pleasing hook from a tune titled “Khosara Khosara” composed by Baligh Hamdy for the 1960 Egyptian film Fata Ahlami. When “Big Pimpin” came out in 1999, Timbaland assumed that the tune he sampled was in the public domain. It wasn’t. So EMI asserted rights and got Timbaland to pay $100,000 for a license.
The story, of course, doesn’t end there.
EMI had obtained rights by making a deal with an outfit that had its own agreement with Hamdy’s heirs, including his nephew Osama Ahmed Fahmy.
In 2000, when Fahmy found out about “Big Pimpin,” he began to investigate a copyright claim. He was told about the EMI license, but nevertheless Fahmy in 2007 filed the case that would go on and on and on. In the lawsuit, he alleged that Jay-Z had mutilated his uncle’s song.
The lawsuit looked to be over in 2013 when a judge granted Jay-Z’s motion for summary judgment on the basis that the six years it took Fahmy to file his complaint was too much of a prejudicial delay. However, the following year in a case involving the Martin Scorsese film Raging Bull, the Supreme Court determined that prejudicial delay (known as the doctrine of laches) couldn’t be invoked to preclude copyright claims within the statutory limitations period. And so Fahmy won a motion for reconsideration and the lawsuit was revived.
Some of Fahmy’s claims over use of “Khosara Khosara” did fall outside of the statute of limitations, but he was allowed to pursue damages from the continued distribution of “Big Pimpin” from three years prior to the 2007 filing of the lawsuit to the present.
The case went to trial in 2015, but the judge cut it short in the middle by granting Jay-Z’s motion for a judgment as a matter of law.
The big issue in the case was the question of whether the deal made by Hamdy’s heirs constituted a complete transfer of rights to “Khosara Khosara,” including the right to create derivative works, or whether Hamdy’s heirs retained an inalienable moral right under Egyptian law.
Whare are moral rights?
Basically, it is recognition of the special relationship that an author has with his or her creation. Many countries bestow creators with a right of attribution and the right to the integrity of their work. Fahmy was asserting the latter and alleging that even if EMI had the ability to make financial deals, Hamdy’s heirs still maintained authority when it came to derivative works.
Although the U.S. recognizes only limited moral rights — really, just for works of visual arts — the case became a tough one because it had the trial judge struggling to figure out dealmaking in the context of Egyptian copyright law. U.S. District Judge Christina Snyder held that the conveyance of rights by Hamdy’s heirs meant a transfer of economic rights and that Fahmy lacked standing to pursue copyright infringement.
On Thursday, 9th Circuit Judge Carlos Bea led a panel that affirms.
Bea acknowledges that an author’s moral rights in Egypt include a limited right to object to “distortions” or “mutilations,” but then adds that “the record plainly does not support Fahmy’s argument that the specific right to prepare derivative works for profit is a non-transferable, non-economic right.”
“This conclusion would not necessitate the determination that Fahmy lacks standing to sue if the moral right to prevent ‘distortions’ and ‘mutilations’ were enforceable in the United States,” Bea continues. “However, Fahmy’s moral rights are not enforceable here for at least two reasons. First, federal law does not recognize the moral rights at issue here.”
The judge invokes the Berne Convention, a treaty that guarantees that holders of foreign copyrights are afforded the same protection as holders of domestic copyrights. That doesn’t help Fahmy, says Bea.
“Since our federal law does not accord protection of moral rights to American copyright holders as to non-visual art, neither does it recognize Fahmy’s claim to moral rights,” he writes. “That Fahey retains moral rights in Egypt does him no good here.”
The opinion (read in full here) then moves to the second reason why Fahmy’s moral rights are not enforceable: “[E]ven if federal law recognized the moral rights of musical authors (or merely enforced foreign copyright law), the specific right Fahmy retains under Egyptian law entitles him only to injunctive relief in Egypt.”
The 9th Circuit judge notes that under Egyptian law, Fahmy could only get an injunction if he compensated Jay-Z fairly for limiting what otherwise would be an unencumbered economic right to exploit “Khosara.” Without any evidence that Fahmy had made such an offer, Bea concludes Fahmy wouldn’t even be entitled to an injunction in Egypt.
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