Ninth Circuit Hands ‘Big Pimpin’ Copyright Win to Jay-Z

(Via Wikipedia)

LOS ANGELES (CN) – A Ninth Circuit panel ruled Thursday the relative of an Egyptian composer lacked legal standing to bring a copyright infringement claim against rapper and business mogul Jay-Z, affirming a federal judge’s ruling that composers’ “moral rights” protecting their works are not transferable to their heirs.

In a 23-page opinion, the three-judge panel affirmed the October 2015 finding by U.S. District Judge Christina Snyder that Jay-Z and producer Timbaland’s use of an Arabic flute melody in the hit song “Big Pimpin’” was protected by an Egyptian law that says artists have the right to adapt an original composition to create derivative works.

The panel included U.S. Circuit Judges Carlos Bea, Consuelo Callahan and Paul Kelly. Bea wrote Thursday’s opinion.

Their decision hinged on whether Osama Ahmed Fahmy could bring copyright infringement claims under an Egyptian law that recognizes an inalienable “moral right” of the author to object to offensive uses of a copyrighted work.

“We hold that he cannot,” Bea wrote for the panel.

Fahmy – the relative to Egyptian composer Baligh Hamdi and heir to his copyright of the 1957 hit ‘Khosara’ – claimed Jay-Z and Timbaland looped four measures of an Arabic flute for their song without his permission.

Jay-Z, real name Shawn Carter, and Timbaland, real name Timothy Mosley, and the labels and companies associated with “Big Pimpin’” said they paid $100,000 to use the sample after Timbaland found Hamdi’s song on a CD.

The artists “thought the music was part of the public domain and did not obtain permission to use it,” according to Bea’s opinion.

Attorneys for the artists previously argued that Fahmy did not hold an exclusive economic right to license or prevent the use of the sample in the United States.

In an email, Timbaland’s attorney Christine Lepera said her clients were pleased with the decision.

“This is a seminal decision from this circuit on moral rights, and provides an important road map regarding the distinction between moral rights which are not actionable in the United States, and the economic right in a copyright, which is,” Lepera said.

“The plaintiff did not have economic rights in the allegedly infringed “Khosara” composition, and thus no right to sue for infringement in connection with “Big Pimpin.’”

In an email, Jay-Z’s attorney Andrew Bar declined to comment. Fahmy’s attorney Peter Ross did not respond to a request for comment by press time.

Under the terms of 2002 agreement with Egyptian music executive Mohsen Mohammed Jaber, Fahmy retained the right to royalties for all future adaptations of the song.

Bea said that fact “does not give him standing to sue for copyright infringement” in this case.

“The same is apparently true in Egypt,” Bea said.

The right to receive royalties in Egyptian law is separate from the bundle of economic rights related to the copyright, according to the opinion.

Attorneys representing Fahmy previously argued that Egyptian law allows authors to assert “moral rights” to their works in Egypt and contest alterations to their songs.

They argued Jay-Z’s lyrics highlighted drug trafficking and misogyny, damaging the integrity of Hamdi’s musical legacy.

Judge Snyder dismissed the argument, finding an examination of the lyrics was irrelevant to the case since improper sampling charges were directed toward Timbaland.

Music copyright holders in Egypt possess both moral rights of “integrity” and economic rights to profit, according to Bea’s opinion.

The panel found that Fahmy’s moral rights are not protected by federal law, and he therefore lacked legal standing to bring copyright infringement claims.

“No provision of the [Copyright Act] recognizes a moral right to prevent distortions or mutilations of copyrighted music,” Bea wrote.

The panel also considered whether Egyptian law was enforceable in a U.S court and how it might factor in Fahmy’s case if it was. The panel was definitive in their opinion.

“That Fahmy retains moral rights in Egypt does him no good here,” Bea said, while also noting that the specific rights Fahmy retains under Egyptian law entitle him only to injunctive relief in Egypt.

Bea also wrote that Fahmy has not complied with the compensation requirement of Egyptian law, which does not provide for monetary damages.

The hook for “Big Pimpin’” was sampled from Hamdi’s “Khosara Khosara” (“What a Loss, What a Loss”) originally composed for the movie “Fata Ahlam.”

Hamdi transferred certain license and distribution rights to Egyptian recording company Sout al Phan in 1968. When Hamdi died in 1993, his heirs inherited whatever rights he retained for “Khosara Khosara.”

In December 1995, Sout el Phan transferred rights to EMI Music Arabia.

EMI licensed the use of the “Khosara, Khosara” sample in 2000 to Timbaland in every territory except Egypt. Sout el Phan retained the rights to license and distribute in Egypt.

With Thursday’s affirmation from the Ninth Circuit, Jay-Z and Timbaland have avoided the kind of adverse judgment that led to a $7.4 million verdict – later cut to $5.3 million – in favor of Marvin Gaye’s family, who claimed Robin Thicke and Pharrell Williams copied Gaye’s “Got to Give It Up” for their chart-topper “Blurred Lines.”

 

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