Written by Austin Siegemund-Broka — Exactly how does the concept of "moral rights" cover — or not cover — the rapper's 1999 chart-topper?
No multiplatinum hip-hop stars were present in court on the third day of trial between Jay Z and the nephew of Egyptian composer Baligh Hamdi. Instead, discussion on the intricacies of international copyright law took center stage.
The late composer’s relative Osama Fahmy claims Jay Z and producer Tim “Timbaland” Mosley improperly licensed his uncle’s composition “Khosara Khosara” for the 1999 hit "Big Pimpin'."
The question is whether Jay Z and Timbaland could edit “Khosara Khosara” into the iconic intro of "Big Pimpin'" with respect to "moral rights," a concept in copyright law uncommon (though not nonexistent) in the United States but more prevalent internationally.
In Egyptian law, “economic rights" licensable to others are the right to reproduce copyrighted works. "Moral rights" are the original author's rights to permit — or reject — works derived from the original. They are non-transferrable.
Fahmy filed in 2007 claiming regardless of whether Jay Z and his producer obtained the "economic" rights for the sample, they never received permission to edit "Khosara Khosarsa" from Hamdi’s heirs.
In the eight years since, Fahmy has argued Jay Z could not dodge the requirement for Hamdi's heirs’ permission despite obtaining the “economic rights” from EMI Arabia, which had obtained them from the Middle Eastern label Sout El Phan, which in turn obtained them from Hamdi’s family.
Sout El Phan never had the right to license derivative works without the heirs' permission, the plaintiff contends, so Sout El Phan could never confer the right on EMI Arabia.
The trial opened Tuesday in Los Angeles. Timbaland and Jay Z testified Wednesday, covering the production of “Big Pimpin,’” the influence of the song on their careers and deal with EMI Arabia in 2001 they thought transferred them the rights to “Khosara Khosara.”
In testimony Thursday, Chris Ancliff, who was counsel for EMI Arabia at the time "Big Pimpin'" was released, explained why he thinks Jay Z and Timbaland are not infringing.
He 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.
Therefore, he testified, EMI’s deal with Jay Z and Timbaland in 2001 gave them the right to include "Khosara Khosara" in "Big Pimpin'" forever, outside Egypt. But "moral rights" only could be invoked in Egyptian court, he continued. "We were not transferring rights for Egypt, so we were not concerned," he said.
The defendants' expert Walid Farhad, a lawyer 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, said Farhad.
"The right to sample is an economic right?" the defendants’ attorney David Steinberg inquired.
“Definitely,” said Farhad.
He said Hamdi's family's deal with Sout El Phan in 2002 did not revoke the family's "moral rights." Like Ancliff, he just said they only could exercise the rights over works in Egypt.
"There's nothing in Egyptian law to [indicate] the obligation to go back to the author to get permission to use those [adaptation] rights in the United States?" asked Steinberg.
"No," said Farhad.
The trial will continue Friday. Representatives from other defendants, including Universal Music Group, Paramount and MTV, are expected to testify.
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