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Trial Needed to Sort Out Jay-Z’s Copyright Fight

LOS ANGELES (CN) - The Egyptian man who brought copyright claims over Jay-Z's "Big Pimpin'" can seek damages only for alleged infringements within three years of his lawsuit, a federal judge ruled, saying a trial would have to determine the issue of profits from live performances of the song.

Osama Ahmed Fahmy sued Jay-Z in 2007 alleging copyright infringement claims. Fahmy is the nephew of the late Egyptian composer Baligh Hamdy, who wrote the song "Khosara, Khosara," which Jay-Z sampled for "Big Pimpin.'"

The copyright for "Khosara, Khosara" is split between Hamdy, his uncle and each of his three siblings. In the mid-2000s, Fahmy authorized a third party named Ahab Nafal Joseph to file claims on behalf of the Hamdy relatives. But the claims were thrown out of court because Nafal was a nonexclusive licensee. Fahmy's suit followed.

Earlier this year, Jay-Z asked the court to rule that the statute of limitations limited the amount of damages available to Fahmy under the Copyright Act. Fahmy had also sought to recover the rapper's profits from concert performances of the chart-topper, which was released in April 2000.

Because Fahmy had knowledge of "Big Pimpin'" as early as December 2000 and could not prove equitable tolling, he can recover damages only from infringements that occurred after Aug. 31, 2004, three years before he filed suit, U.S. District Judge Christina Snyder ruled.

Fahmy made three arguments to bolster his claims that "extraordinary circumstances" prevented him from discovering the infringements until after the statute of limitations period had expired.

But Snyder rejected each claim after finding the statutory period was not tolled even though Fahmy lived in Egypt and spoke "little to no English."

"Moreover, plaintiff admits he had knowledge of the factual basis of his claim no later than December 2000, and ignorance of the law or difficulty in bringing suit are not grounds for equitable tolling," the Dec. 9 decision states.

The judge also disagreed that alleged misrepresentations from an attorney with Jay-Z's record label, EMI, would help Fahmy, adding that it is "questionable" whether the lawyer's statements about licensing "were in fact misrepresentations."

Fahmy furthermore cannot get a break by arguing that he had been misled by his own agents, the Egyptian businessman Farouk Sima, who offered to help him prosecute the case in America, and Nafal.

While Snyder refused to let Fahmy recover from Jay-Z's concert revenues, she added that there is room to debate whether Jay-Z directly profited from live performances of the song. As such, the rapper must provide more information on "both the manner of advertising concerts as well as the revenues derived," according to the 17-page decision.

"There is no record evidence that Jay-Z used Big Pimpin' in his advertisements for a particular concert or concert series, or that Big Pimpin' was performed at every concert," she wrote. "Accordingly, it is a question of fact whether Jay-Z's concert revenues should be considered direct or indirect."

"This case may be more akin to the infringing use of copyrighted songs as part of a larger musical revue ... an infringing use of a painting in a textbook ... and one infringing poem contained in a poetry anthology ... than the infringing use of copyrighted text or images to promote season tickets for the symphony ... or the sale of a car ... but that is up to a jury to decide, Snyder added. "Accordingly, the court finds that there is a triable issue whether Jay-Z's concert revenues constitute direct profits from his infringing live performances of Big Pimpin' for purposes of the Copyright Act."

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