It’s a music copyright case that set rapper Jay-Z against the relative of an Egyptian composer virtually unheard of in the United States and entangled him, or least his lawyers, in an obscure foreign law that protects artists who object to alterations of their work.
On Friday, the Ninth Circuit considered arguments in the copyright infringement case against the rapper’s hit “Big Pimpin'” after a federal judge threw out the case in 2015. Plaintiff Osama Fahmy hopes the court will reverse that decision and grant him a retrial after he claimed that Jay-Z (real name Shawn Carter) and producer Timbaland (Timothy Mosley) had looped four measures of an Arabic flute for “Big Pimpin’” 17 years ago without his permission.
The hook – arguably the key to the song’s success – was sampled from “Khosara Khosara” (“What a Loss, What a Loss”), composed by Fahmy’s uncle Baligh Hamdi. Little known here, Hamdi was a famed composer in Egypt, and the singer and movie star Abdel Halim Hafez sang “Khosara Khosara” in the movie “Fata Ahlam.”
Jay-Z, Timbaland and the labels and companies associated with the song have been in a decade-long legal battle with Fahmy. They maintain they paid $100,000 to use the sample after Timbaland found Hamdi’s song on a CD.
They won a reprieve in 2015, when U.S. District Judge Christina Snyder ruled from the bench instead of handing the case over to a jury for deliberations. She found Fahmy lacked legal standing to sue copyright infringement because he had transferred economic rights under Egyptian copyright law to Egyptian music executive Mohsen Mohammed Jaber.
On appeal at the Richard H. Chambers Courthouse in Pasadena, Fahmy’s lawyer Keith Wesley centered his argument on an Egyptian law that allows authors to assert “moral rights” to their works in Egypt and contest alterations to their songs.
In court papers, Fahmy argued Jay-Z attacked the integrity of his uncle’s work by “glorifying” drug trafficking and misogyny in the song’s lyrics.
The question is whether Egyptian law holds any sway in a U.S. courtroom. The Ninth Circuit grappled with that during the hearing, while Wesley dismissed the differences between authors’ rights in the United States and Egypt as semantics.
Here, courts have protected the right to make derivative works. And in Egypt there is a right to prevent a “distortion or mutilation” of a work, Wesley said – they merely go under different names or “labels.”
“Both the United States and the country of Egypt give authors alone the right to make fundamental changes to their copyrighted works,” he said. “The Hamdi family retained the right to prevent any fundamental modification to the work ‘Khosara Khosara.’”
But Jay-Z’s attorney Christine Lepera accused Fahmy and his attorney of trying to “import” moral-rights law that is not enforceable in the United States.
“You can’t transfer the personal right of integrity under Egyptian law, and the remedies are under Egyptian law, not U.S. law. We don’t recognize it for any purpose,” she said.
Even if Fahmy could assert his rights he would not be entitled to money damages, only an injunction in an Egyptian court, she said.
But Wesley said Lepera’s reading of the case would set up a “catch-22” for foreign authors because they would be litigating claims in their home court when the infringement was in another country.
“Go to your home country and enforce your rights under your own law but if there’s no infringement there, then you’re out of luck,” Wesley said. “That can’t be the message that this court is sending to foreign authors.”
Circuit Judge Carlos Bea seemed to reflect the panel’s skepticism when he asked Wesley why.
“Why can’t the United States Court say you might have a right in Egypt and if it’s infringed in Egypt your moral right is infringed, sue there?” Bea asked. “Are you saying Egypt law becomes the law of the Ninth Circuit?”
Fahmy is only trying to establish who has the right to make “fundamental changes” to his uncle’s work, Wesley answered. The chain of ownership began in Egypt, he said, but the infringement occurred in the United States.
“We are enforcing a right under United States law, we’re suing for infringement in this country. The only reason why Egyptian law matters is it dictates the scope of rights that we own,” Wesley said.
Circuits Judges Paul Kelly and Consuelo Maria Callahan sat on the panel with Bea. They took the case under submission and did not indicate when they will rule.