"Big Pimpin'" Appellate Arguments Focus on Labels

Does what a right is called affect how it's enforced?
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Jay Z and Timbaland are back in the legal spotlight, as the 9th Circuit Court of Appeals has been asked to address a longstanding copyright fight over their hit "Big Pimpin'." 

In 2007 the heir of Egyptian composer Baligh Hamdy sued the duo, along with just about every individual and company associated with the 1999 song, claiming "Big Pimpin'" infringed on his rights to Hamdy's 1957 song "Khosara Khosara." The artists argue that they paid to use the sample. The heir, Osama Fahmy, licensed "Khosara" to an Egyptian company named Sout el Phan, which then licensed certain rights to EMI Music Arabia, which reached an agreement with Timbaland after "Big Pimpin'" was released. Fahmy says they didn't have a right to fundamentally change the work under an Egyptian law concept referred to as moral rights.

In October 2015, U.S. District Judge Christina Snyder cut the trial short, finding Fahmy lacked standing to pursue the claims because he had given up his rights in the work by licensing it.

Fahmy appealed and, despite initially heated briefs that included allegations of racial insensitivity, the arguments on Friday focused on the issue of moral rights and remained cordial. Circuit judges Carlos Bea, Consuelo Maria Callahan and Paul Kelly Jr. gave each side about 20 minutes Friday morning to explain whether Snyder's call was correct.

A decade of litigation seems to have boiled down to one key question: Does the definition of a moral right change if you call it anything else?

Fahmy's attorney Keith Wesley told the 9th Circuit that labels don't matter, and that Egyptian moral rights should be treated the same way the right to control derivative works is under the U.S. Copyright Act. "The Hamdy family retained the right to prevent any fundamental modification to 'Khosara,'" he argued. "When you put aside the labels … we're just talking about what this right is. It's the right to make changes in a work."

Callahan pointed out that only injunctive relief is available in Egypt to address moral rights disputes and asked Wesley to explain how that translates to a right to sue for damages in the U.S.

"You look to the law of the country of origin for determining ownership issues," Wesley said. "But when you look at infringement, you look at the law of the country where the infringement occurred."

Kelly didn't seem swayed. "A moral right is not the same as an economic right," he said. "The question I have is whether or not the moral right survives crossing over into the United States." 

Wesley argued that it does. "Under Egyptian law, nobody can give away the right to make fundamental changes," he said, again comparing it to U.S. copyright concepts. "The use of a copyrighted work in a sample is an example of a derivative work. It's not about labels. It's about what rights can be transferred."

Meanwhile, Timbaland's attorney Christine Lepera said labels are very important in this matter because Fahmy's lawyers are attempting to import foreign rights and muddy the law. She also explained that if Fahmy wanted to seek an injunction in Egypt by exercising moral rights in "Khosara" he would have to pay in advance fair compensation to the person to which he granted the license of economic rights — and he wouldn't be able to sue for monetary damages there.

"He wants to get a better deal here than he would get in Egypt," she said. 

Callahan asked Lepera whether, in her opinion, Fahmy could have written a licensing agreement that would have allowed him to sue on these claims. 

"Absolutely," she said, adding that he could have explicitly excluded the right to adapt the works or allowed changes to it pursuant to his approval.

Theoretically Fahmy could get an injunction in Egypt that would stop exploitation of the song there, Lepera said, adding "The problem with that is ["Big Pimpin'"] is not exploited in Egypt."

During his rebuttal, Wesley said that argument doesn't seem just. "'Go to your home country and enforce your rights ... but, if there's no infringement there, then you're out of luck,'" he said. "That can't be the message this court sends to foreign authors."

The panel took the matter under submission and will issue a written ruling. 

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