Jay Z, Timbaland, EMI and a host of others are heading to court this October on a copyright infringement case for Big Pimpin’. And yes I do mean the Big Pimpin’ that was released in the 1990’s. This is a case that is 16 years in the making! The backdrop: Timbaland worked with Jaay-Z on the song and one day while they were in the studio, Timbaland played a CD with an old Egyptian composition on it, which he believed to be in the public domain. The song “Khosara, Khosara” was composed by Baligh Hamdi and premiered in an Egyptian film. Timbaland borrowed a flute melody from the song, looped it and Big Pimpin’ was born.
EMI owned rights to the song based on an agreement made with an Egyptian outfit that made a deal with the composer’s heirs. Timbaland paid $100,000 for the rights to use the sample and he and Jay -Z continued to exploit the song. However, in 2007, Osama Ahmed Fahmy, Hamdi’s nephew (“Plaintiff”), brought suit in federal court alleging copyright infringement. Timbaland and Jay-Z operated under the assumption that they properly secured licenses to use the song. Apparently soon after EMI and Timbaland inked their licensing deal, Plaintiff, as an heir of Hamdi, reached a deal with the Egyptian outfit where he (among other heirs) received a lump sum of money for assigning their rights and exclusive control of Hamdi’s songs. Defendants argue that agreement precludes Plaintiff’s claims of copyright infringement.
Plaintiff’s argument is based on “droit moral”, so called moral rights, which refers to the right of an author to prevent revision, alteration, or distortion of his work, regardless of who owns the rights to the work. Moral rights are only recognized in the United States as applicable to visual works. Countries outside of the United States recognize moral rights in other types of copyrighted works, such as compositions and sound recordings. Plaintiff argues that the moral rights personal to Egyptian authors impacts licensing contracts, regardless of where they are inked. Plaintiff also contends that the agreement Timbaland entered into with EMI was invalid as it did not convey the right to use the composition in Big Pimpin’ nor the right to modify it in any way. Plaintiff really contends that EMI did not have the right to sub-license the song at all.
The court will be faced with the daunting task of determining which of the agreements between the heirs and the Egyptians who ultimately assigned to EMI are valid in order to decide on the validity of the suit. The issues of originality, copying, and fair use will become major issues if the agreements are found to be invalid. It is possible that the case can be thrown out on statute of limitation grounds since Plaintiff didn’t bring forth the suit until 2007 and the song was released in 1999, and copyright claims have a 3-year statute of limitations.
I am actually really looking forward to the opinion in this case as it will likely touch on a variety of issues that are germane to copyright law. Moral rights are often irrelevant in music here in the states, so it will be very interesting to see how crafty Plaintiff’s lawyers get with using it as a basis for their music infringement suit. A case with this much history is almost certain to make a change in some area of the law, especially since it hasn’t been summarily dismissed from the outset based on the statute of limitations. Let’s just hope these defendants don’t get stuck spending cheese on settling this lawsuit.
Lerae Funderburg, Esq. is the Managing Attorney at Funderburg Law, LLC, an Atlanta based entertainment law firm. Lerae has almost 10 years of experience in entertainment law in both music law and film law. As an entertainment lawyer and blogger, Lerae keeps her viewers and subscribers up to date with entertainment legal news, especially in the areas of music. If you are local to Atlanta, call and set up a consultation! She would love to hear from you!