COPYRIGHT / MORAL RIGHTS / CONTRACT
Music publishing

 

 

Attorneys for Jay Z have told a U.S court in Los Angeles that the rapper had properly acquired the rights to an Egyptian musician’s melody to use for his hit 1999 song “Big Pimpin’,” as a trial in a longstanding copyright lawsuit
Jay Z (Shawn Carter and hip hop producer Timothy “Timbaland” Mosley are among the defendants named in a 2007 complaint by the nephew of late Egyptian songwriter Baligh Hamdy, who argue that the rapper had used his uncle’s composition from the 1950s without permission.
Jay Z’s lawyer Andrew Bart argued that the explicit lyrics of “Big Pimpin'” should not be discussed in relation to the lawsuit, as a depiction of the words as “vulgar” and “disgusting” could prejudice the jury against Jay Z, a move supported by U.S. District Court Judge Christina Snyder who ruled that examining Jay Z’s lyrics would be irrelevant in this case, although Attorney Peter Ross, representing Hamdy’s nephew Osama Ahmed Fahmy, told the eight-member jury that the defendants had purposefully avoided asking permission to use Hamdy’s track because they allegedly knew it wouldn’t be granted given the risqué lyrics.
Timbaland used Hamdy’s 1957 Egyptian tune “Khosara, Khosara” as a chorus loop for “Big Pimpin'” without realizing it was owned by EMI Music Arabia. Timbaland told a reporter at the time that he thought he’d heard the tune at a carnival and he “hired an old guy to play it on an Arabian flute” .However the defendants later paid $100,000 to EMI Music Arabia in 2001 to acquire a license to use the song. EMI Arabia say they own the rights under a 1995 license from Middle Eastern music company Sout El Phan who in turn obtained the rights from the composer’s heirs.
But Fahmy has argued in court documents that the payment (for ‘economic rights’) is inconsequential, and that only Hamdy’s heirs have the right to approve a derivative work of the late musician’s composition in a case which now also relies heavily on the moral rights of the author, a feature of Egyptian copyright law (and one which readers know is common in civil law countries influenced by European legal codes) but which is an alien doctrine to U.S. law.  The plaintiffs have argued that Sout El Phan never had the right to license derivative works without the heirs’ permission, so Sout El Phan could never confer the right on EMI Arabia.

 

“Big Pimpin’” borrows none of the original song’s lyrics or its singing style. What’s been taken is the orchestral backing with insistent repetition and  a memorable beat: But and its a big but, “Big Pimpin’” as an “anthem of sex without connection” – which runs contrary to the romantic idealism of “Khosara Khosara.” – although one commentator notes that “both songs use the rhythm of sexual desire, albeit in different ways. In the Egyptian original, it’s the insistent pressure of love and seduction. In the American version, it’s sex as a recurrent way of life. Each approach has something to say for itself, artistically and ethically.”
In testimony, Chris Ancliff, who was counsel for EMI Arabia at the time “Big Pimpin'” was released, explained why he thinks Jay Z and Timbaland have not infringed: Ancliff noted EMI’s deal with Sout El Phan transferred the “Khosara Khosara” rights for everywhere outside Egypt. The contract further specified English law would apply to disputes over its implementation. Ancliff testifie that  EMI’s deal with Jay Z and Timbaland in 2001 gave them the right to include “Khosara Khosara” in “Big Pimpin'” forever, outside of Egypt. But “moral rights” only could be invoked in Egyptian court. A legal expert for the defendants, Walid Farhad, who represents Middle Eastern record companies, said the rights Hamdi’s family signed over to Sout El Phan included the right to produce derivative works. Jay Z obtained this “economic right” of “adaptation” via EMI and confirmed that in his opinion that the right to sample is an economic right and that there is nothing in Egyptian law to indicate the obligation to go back to the author to get permission to use those [adaptation] rights

 

And in a swift finale, US district judge Christina Snyder abruptly dismissed the lawsuit before it went to a jury at a federal court in Los Angeles on Wednesday, 21st October, ruling that the Fahmy lacked the right to pursue a copyright infringement claim. The judge ruled that Egyptian law did not apply and that the case should not go to a jury. “Fahmy lacked standing to pursue his claim. In light of that decision, it will not be necessary to submit to the jury whether Big Pimpin’ infringed Khosara Khosara,” she said. The plaintiffs have said they will file an appeal,
http://www.theguardian.com/music/2015/oct/21/jay-z-wins-copyright-infringement-case-big-pimpin-sample and http://www.hollywoodreporter.com/thr-esq/big-pimpin-trial-jay-z-832532 and
http://www.bloombergview.com/articles/2015-10-16/the-virtues-of-sampling-copyright-and-big-pimpin-