Court Finds Plaintiff Has No Standing To Bring Copyright Claim For Big Pimpin'

David E. Jang

David-E-Jang-portrait David E. Jang is a senior associate in the Los Angeles office of Kelley Drye & Warren LLP. He is a business litigator whose practice includes entertainment litigation, trade secret protection and insurance recovery. He can be reached at djang@kelleydrye.com.

The copyright infringement action involving rapper Jay-Z’s Big Pimpin’ was recently dismissed in the Central District of California.

In 2007, Osa`ma Ahmed Fahmy filed suit against artists Jay-Z and Timothy Mosley (aka Timbaland), among others, claiming that the song Big Pimpin’ infringed Fahmy’s rights in the song Khosara, Khosara (“Khosara”).1 Fahmy alleged that the defendants recorded Big Pimpin’ wherein Jay-Z sang rap lyrics over a recording of Khosara.  Fahmy did not dispute that pursuant to his agreement with Mohsen Mohammed Jaber, certain rights in Khosara had been transferred under Egyptian law to Jaber.  However, Fahmy contended that the transferred rights did not include the right to make derivative works using Khosara.  Fahmy argued that under Egyptian law, the right to make derivative works is an inalienable moral right 2 reserved to the author of the work or his heirs.  He also asserted that he retained certain economic rights. 

On October 21, 2015, after the first phase of a bifurcated trial, the court granted the defendants’ motion for judgment as a matter of law, finding that Fahmy lacked standing to bring the suit because he had transferred all his economic rights in Khosara to Jaber.  The court found that while moral rights under Egyptian law are inalienable and may be asserted to prevent modifications to a work, such rights are not enforceable in a U.S. court.  As a result, if an artist’s moral rights are violated under Egyptian law, he must seek a remedy in the nature of an injunction in an Egyptian court.

The court also found that while moral rights are inalienable under Egyptian law, an artist may transfer all of his economic rights in a work, including the economic right to authorize or prevent modifications to a work.  After considering the testimony of experts, the court concluded that Fahmy had conveyed all his economic rights in Khosara to Jaber under the terms of their agreement.  The court agreed that previously ambiguous terms in the agreement had been clarified to confirm that Fahmy retained no economic rights in Khosara.  For instance, the court found that contract language suggesting Fahmy had reserved some economic rights actually referred to the right to receive royalties. Under both U.S. and Egyptian law, the right to receive royalties is distinct from economic rights.

Fahmy appealed the court’s decision to the Ninth Circuit Court of Appeals in February 2016.

1 Plaintiff is an heir of Baligh Hamdi, a famous Egyptian composer who coauthored the song Khosara.
2 Moral rights are personal to authors. They exist independently of the artist’s economic interest in the work.

ELIPS home page link ELIPS newsletters LACBA twitter link ELIPS LinkedIn link ELIPS on facebook