The Egyptians’ and their empire, culture, and world views so enthralled the ancient world that Greek and Roman generals and statesmen dreamed of ascending to the pinnacles of its power as pharaoh. But centuries later, and after more than a decade of litigation, Jay-Z — a royal of American modern urban music — may simply be relieved he and a host of others no longer will need to “be spendin’ big cheese” to defend a 1999 copyright infringement case over the rap hit Big Pimpin.
The U.S. Court of Appeals for the Ninth Circuit has rejected the suit against the superstar, aka Shawn Corey Carter, and others, quashing claims over the Big Pimpin sampling of a flute track from the song Khosara and putting to rest for now an attempt to extend “moral rights” for Egyptian and other global creatives and their works into American copyright laws on music and its recording.
Egyptian composer Baligh Hamdy held the rights to Khosara, dating to its 1957 use in an Egyptian film, and his relative Osama Fahmy claimed he inherited these. After Fahmy became aware in 2000 of Big Pimpin, a year after its release, he proceeded to hire American lawyers to investigate possible infringement claims. But lawyers, as part of this process, also unearthed a 2002 agreement in which Fahmy, representing Hamdy’s heirs, purportedly had transferred “all” Khosara rights to Mohsen Jaber.
Infringement saga launches
Still, in 2007, Fahmy sued Jay-Z, a host of music industry businesses, and a complicated crew of creatives — including rapper Timbaland, members of the hip hop group UGK and the rock band Linkin Park — claiming infringement under Section 106(2) of the Copyright Act.
Jay-Z and others involved in Big Pimpin said they innocently had sampled Khosara, believing it had entered the public domain. Timbaland, aka Timothy Mosley, in 2002 was told of potential complications with rights to the song, and he paid $100,000 to EMI Music Arabia, which claimed it held rights to the tune (click on the photo to play a video of it, though be warned: It may not be safe for work).
Pretrial motions prevented the case from starting up for another eight years, until 2015. In October of that year, U.S. District Judge Christina A. Snyder in Los Angeles then tossed the case, finding Fahmy lacked standing to make his claims because he signed the proper and binding 2002 agreement, transferring rights to Hamdy’s song. That agreement also allowed derivative works to be created from Khosara, and the judge said Egyptian law would permit such creations as artists exercising economic not moral rights.
Judge Carlos T. Bea, writing for the unanimous appellate panel, affirmed Snyder’s decision, despite Fahmy’s three alternative arguments for standing. in which he had asserted that:
- Under Egyptian law, it is impossible to transfer the right to prohibit derivative works because it is a right subsumed within Egyptian “moral rights,” and is inalienable;
- The 2002 Agreement is deficient for failing to “contain an explicit and detailed indication of each right to be transferred,” per Article 149 of Egyptian Copyright Law.
- The 2002 Agreement reserves his right to receive royalties, thus making him a ‘beneficial owner’ of the Khosara copyright and conferring upon him standing to sue for copyright infringement.
Although music always has had global reach — hey, hip hop stars sampling music they heard for belly dancing, right! — the Big Pimpin case failed to extend for creatives protections that they enjoy more robustly overseas, notably so-called moral rights. American law, specifically copyright, has focused on artists’ controlling economic rights to their works, including who gets paid for their use and how.
But other nations have sought, under the French term droit moral, to give creatives protections for their artistic reputations and others changing or using them to the detriment of their works’ integrity. Famous maestros and prima donnas long have felt free to cut, restructure, and to otherwise tweak and tinker freely with classical composers’ music. Composers and songwriters have been legendarily leery of politicians and political campaigns capturing and subverting their works, even if done so legally. A famous crooner unsuccessfully sought to block movie makers from using her works in films she found distasteful because of their explicit sex and violence. The issue has blown up recently, for example, between songwriters and rights licensing and protection organizations.
The appellate court in Jay-Z’s case held that Fahmy’s moral rights were unenforceable because U.S. federal law does not recognize them, specifically as applied to music or its recording. The U.S. Visual Rights Act —the area of the Copyright Act that now discusses and provides for moral rights [ 17 U.S.C. 106A(a) ] — does not apply to, nor would it prevent distortions or mutilations of copyrighted music. Further, the appellate court said that, even if American law recognized moral rights for composers, under Egyptian law, Fahmy at best would be entitled to injunctive relief in Egypt.
Christine Lepera, a defense lawyer for Jay-Z and the other defendants, stated, “this is a seminal decision from this circuit on moral rights.”
Besides rejecting the moral rights claim, the appellate judges dismantled other elements of Fahmy’s case. The court looked to his 2002 agreement, finding it clear and specific, both in protecting and allowing the economic right for the holders to allow derivative works. The judges also waved off an argument he made as to how his possible receipt of royalties gave him standing to sue Jay-Z. Both in the United States and Egypt, receiving royalties does not give standing to sue for copyright infringement, the appellate court said. The judges cited Yount v. Acuff Rose-Opryland, which stated, “royalty rights reserved in a contract transferring a copyright are concern of state contract law only and are not a concern of federal law at all.”