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Judge Rules That Egyptian Moral Rights Don't Provide Standing In Tangled Lawsuit Over Jay-Z's Big Pimpin'

from the i-don't-fucking-need-'em dept

Thu, Oct 22nd 2015 9:47am — Mike Masnick

For a while now, Jay-Z has been engaged in one of the more bizarre copyright(ish) cases around, concerning his classic song "Big Pimpin'". The musical hook to that tune -- everyone agrees -- was from the song "Khosara, Khosara." But this isn't a typical copyright case because the song was licensed to Jay-Z back in 1995. So, there shouldn't be any issue, right? Except that the nephew of the composer of the song claims that the song still violates his uncle's moral rights. Moral rights, as we've discussed for years, are a fairly common concept outside the US, but mostly not valid inside the US (there is a small exception for certain kinds of "visual" arts, which the US put in place solely to pretend it respects the moral rights requirements of the Berne Convention). Nonetheless, Osama Ahmed Fahmy was surprisingly successful in moving forward with a US-based lawsuit against Jay-Z, on behalf of his uncle, the composer Baligh Hamdy.

Fahmy (and other Hamdy relatives) apparently felt offended by what Jay-Z did with the song, which is the classic case for the reason for moral rights (to stop someone, say, for using your song or painting to support the Nazis or whatever). And while it seemed like it should be a simple thing just to have the case thrown out because the US doesn't recognize moral rights in music, the case still went forward, with Jay-Z even having to testify. Finally, after all that, the judge announced that Fahmy did not have standing to sue Jay-Z. As for why the case even went this far, the judge, Christina Snyder, said she needed to hear from Egyptian law experts first.

Either way, Fahmy's lawyers have made it clear they're going to appeal the case, so it's not over yet, but it seems difficult to see how the case will stand up. A clear license to use the music was granted, throwing in these additional moral rights just seems like yet another example of copyright overreach -- but one that the court has, thankfully, rejected.

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Filed Under: baligh hamdy, big pimpin', copyright, egypt, jay-z, moral rights, osama fahmy

33 Comments

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That One Guy (profile), 22 Oct 2015 @ 8:33am

Nothing to discuss
The judge's excuse seems to ring hollow. It doesn't matter what the egyption law on the issue is, the case was being held in the US, so US law prevails, and US law doesn't recognize moral rights as far as copyright goes.

This should have been an open and shut case. The one bringing the lawsuit files it before the court, the court points out that the legal argument they're using has no legal basis in the US, and the case is dismissed as a result. Asking for the opinion of lawyers in another country, with different laws, was just wasting everyone's time.
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Roger Strong (profile), 22 Oct 2015 @ 10:19am

> ...the classic case for the reason for moral rights (to stop someone, say, for using your song or painting to support the Nazis or whatever.)

There's also regular cases of musicians being upset when their music is used in political campaigns by candidates they oppose.
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cpt kangarooski, 22 Oct 2015 @ 10:28am

Re: Nothing to discuss
No, it's not a waste of time. US courts can and do apply foreign law at times. It was possible that in this case, the issue should have been adjudicated under Egyptian law, but that venue was appropriate in the US, which would require a US court to actually do it.

I haven't read the opinion, but probably this is what was being decided. No idea why musical testimony would be required though; it's a procedural question, not a substantive one.
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Anonymous Coward, 22 Oct 2015 @ 10:35am

I wonder if the judge got got that autograph she was apparently hoping for.
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David, 22 Oct 2015 @ 10:35am

Next time
they need to put those moral objections in the actual license.
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Anonymous Coward, 22 Oct 2015 @ 10:55am

Re: Re: Nothing to discuss
I haven't read the opinion, but probably this is what was being decided.
Neither have I, but looking at the linked article from THR:
The verdict ended a weeklong trial in which the plaintiff, Osama Fahmy, argued the Egyptian concept of "moral rights" applied to Jay Z’s license for "Khosara Khosara" and required the rapper, Timbaland and their record label to get Hamdi’s family’s permission to sample "Khosara Khosara."
(Emphasis added.) Keeping in mind that media frequently does mischaracterize court cases, nevertheless, if THR's reporting is at all accurate, then it looks like a contract issue.

Speculating, plausibly, plaintiff would have argued that the license contract was negotiated under Egyptian law.

Contracts (including licenses, and specifically, copyright licenses) are frequently negotiated with choice-of-law provisions, and those provisions are often enforced in American courts, even when the parties choose foreign law.
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cpt kangarooski, 22 Oct 2015 @ 11:04am

Re: Re: Re: Nothing to discuss
Yes, I understand that it is substantively a copyright case involving a contract, but the issue the court dealt with first, before it could have proceeded to judge the substantive issue, was the procedural one.
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Anonymous Coward, 22 Oct 2015 @ 11:44am

Re: Nothing to discuss
Jay Z and Timbaland contended Fahmy only could hold moral rights in Egypt, while the 2001 license they received from EMI for $100,000 specifically excluded use in Egypt. Whether Egyptian law applied or not was the question facing judge Snyder on Tuesday.

Why should the government of Egypt get to set restriction on speech and doing business in other countries.
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Anonymous Coward, 22 Oct 2015 @ 12:15pm

Re: Re: Re: Re: Nothing to discuss
Yes, I understand that it is substantively a copyright case involving a contract…
Yes.

If, alternatively, it had been a contract case involving a copyright, then plaintiff would have had an action for breach of contract, but not for infringement.

In order to make a successful copyright infringement case involving a contract (or license(*)), plaintiff must argue that defendant's “copying”(**) was outside the scope of the license.

(*) License: Not all licenses are contracts. Essentially, a license is a covenant to waive a legal right, and a party's unilateral covenant may sometimes be enforcable even in the absence of necessities for contract such as mutual agreement, consideration, et cetera. Whether unilateral or bilateral, though, licenses are construed in accord with the principles of contract.

(**) “Copying”: A term of art in copyright law.
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Anonymous Coward, 22 Oct 2015 @ 12:30pm

Re: Re: Nothing to discuss
US courts can and do apply foreign law at times.

US courts should never apply foreign law.
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Anonymous Coward, 22 Oct 2015 @ 12:50pm

Re: Next time
EMI holds the copyrights, and granted the license, leaving moral rights as the only possible reason for the action by Osama Ahmed Fahmy, in an attempt to restrict a license granted by the copyright holder.
To summarise, someone, not the creator, is bringing suite about use of a work licensed by the company the actual creator sold their copyrights to. Yes, copyright law can get crazy.
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Anonymous Coward, 22 Oct 2015 @ 12:57pm

Re: Re: Re: Nothing to discuss
US courts should never apply foreign law.
This is a remarkably… something… attitude.

Let's break it down just a little bit to get at your meaning here—for the sake of discussion.

Are you suggesting that the courts of the United States should never apply California law? The United States and California, of course, are two separate sovereignties. The United States has laws made by the United States Congress, and California has laws made by… by… by… whatever they do call their legislature down there. In a certain sense, the laws of California are “foreign” to the courts of the United States.

Or are you suggesting that either state or federal courts sitting in California should never, ever apply Oregon or Nevada law? Oregon and Nevada, of course, are in one sense, “foreign” to California state.

How about the American Indian tribes? Should cases involving tribal law ever be heard in either state or federal courts? Or should they be heard, but tribal law never applied?

What exactly is the principle you're advocating here? Where precisely would you draw the line?
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cpt kangarooski, 22 Oct 2015 @ 1:11pm

Re: Re: Re: Nothing to discuss
Why not?

Foreign law is merely law originating from outside of the government the court is a part of. When a federal court hearing a case in diversity jurisdiction (such as a case between citizens of different states that meets the amount in controversy requirement), it will often apply the law of one state or another, which is foreign law to the federal court. In fact, it will defer in its interpretation to how the state Supreme Court interprets it, and sometimes will even ask that court for advice. Likewise, states do it all the time with each other and the federal government and foreign countries.

And also sometimes the best case to cite for a point of law that happens to be common between the local and foreign jurisdictions is a foreign case. If any court in the land wants to cite the authoritative case on proximate cause in tort law, they're going to cite Palsgraf v. Long Island R.R. Co., from New York, unless local law no longer treats it as relevant. This works internationally too: The traditional case for consequential damages for breach of contract is Hadley v. Baxendale, an English case from the mid 19th century. This is totally common, and we teach law students foreign cases all the time, if they're the clearest and most influential.

Interpreting law originating from outside of the US is no different. It's not a big deal, and has been going on in the US since we first declared our independence but also took all the English (and now foreign) common law we had been using with us.
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cpt kangarooski, 22 Oct 2015 @ 1:17pm

Re: Re: Re: Re: Re: Nothing to discuss
Of course, in a case in which there are both copyrights and contracts it is rare for there to be any argument over which is the controlling issue. Sometimes it's important, probably most often when one party is trying to avoid exclusive federal jurisdiction over copyright for some reason, but it's usually straightforward enough.
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Anonymous Coward, 22 Oct 2015 @ 1:50pm

Re: Re: Re: Re: Re: Re: Nothing to discuss
Sometimes it's important…
It used to be more important before Ebay v MercExchange (2006). (For extension of Ebay to copyright, see Flexible Lifeline v Precision Lift (9th Cir. 2011) and Perfect 10 v Google (9th Cir. 2011)).

Now, issuance of prelimary injunctive relief no longer has the same potential to turn on whether the case is controlled by copyright or contract.
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Anonymous Coward, 22 Oct 2015 @ 3:20pm

Re: Re: Nothing to discuss
My apologies, I fought you wore arguing in favor of the application of Egyptian laws, but now I realize its the opposite. Sorry.
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nasch (profile), 22 Oct 2015 @ 3:36pm

Re: Re: Re: Re: Nothing to discuss
Are you suggesting that the courts of the United States should never apply California law?

California isn't foreign to the US. Tribal law is a much more complicated issue.
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nasch (profile), 22 Oct 2015 @ 3:37pm

Re: Re: Re: Re: Nothing to discuss
When a federal court hearing a case in diversity jurisdiction (such as a case between citizens of different states that meets the amount in controversy requirement), it will often apply the law of one state or another, which is foreign law to the federal court.

When someone who is not a lawyer says "foreign" it means "from a different country".
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Anonymous Coward, 22 Oct 2015 @ 4:44pm

Re: Re: Re: Re: Re: Nothing to discuss
When someone who is not a lawyer says "foreign" it means "from a different country".
Ok, define it how you like. If that's how you yourself want to use the word. (But what the heck do you mean by “country”?)

There are some edge cases here that you ought to clarify.

• Commonwealth of Puerto Rico — foreign or not?
• Commonwealth of the Northern Marianas — foreign or not?
• Guam — foreign or not?
• Republic of the Marshall Islands — foreign or not?

Oh, and one more tricky one that I almost neglected…

• Guantanamo Bay — foreign or not?

The word “foreign” can mean whatever you want it to mean, I don't mind. You just need to be precise about the definition you're using in this discussion.
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Anonymous Coward, 22 Oct 2015 @ 5:01pm

Re: Re: Re: Re: Re: Re: Nothing to discuss
In this case it means Egyptian foreign. (i:e from another country, not a state of the US, or a US territory)
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LAB (profile), 22 Oct 2015 @ 5:20pm

Re:
Those cases generally lack a license. A license was used here.
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Anonymous Coward, 22 Oct 2015 @ 6:03pm

Mike Masnick just hates it when copyright law is enforced.
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PaulT (profile), 23 Oct 2015 @ 12:58am

Re: Re: Re: Re: Nothing to discuss
"Let's break it down just a little bit to get at your meaning here—for the sake of discussion."

I think your explanation makes it very clear that you're using a different definition of the word "foreign" than the AC was. The AC was clearly indicating that laws from a foreign country should never apply (as per the article where Egyptian law was being discussed in application to the US).

You seem to be regarding different states within the same country as "foreign" and arguing that therefore foreign laws are applied regularly. This might have some legal definition, but it's pretty clear that it's not the definition the person you responded to was using.
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PaulT (profile), 23 Oct 2015 @ 1:01am

Re:
AC hates it when he can't argue the substance of an article. Luckily, he always has a lazy lie to copy and paste rather the address reality.
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Anonymous Coward, 23 Oct 2015 @ 4:43am

Re:
average_joe just hates it when due process is enforced.
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cpt kangarooski, 23 Oct 2015 @ 5:30am

Re: Re: Re: Re: Re: Re: Re: Nothing to discuss
It doesn't matter. The same principle is at work, and US courts routinely consider and apply the law of other sovereign states when it is appropriate to do so. It's not a big deal; it doesn't get used in ways that are inimical to American legal principles, and quite often the parties involved have specifically requested in advance that the courts do this.
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Wendy Cockcroft, 23 Oct 2015 @ 5:51am

That "moral rights" nonsense is just an excuse to exercise ownership over the subject of the copyright. Which is why I'm flippin' surprised the MAFIAA hasn't jumped on it, citing the poor starving artists' right to control the items we've --only licensed-- bought and paid for.
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cpt kangarooski, 23 Oct 2015 @ 8:02am

Re:
Because moral rights cannot be assigned to others. The publishers that control the industry have no desire to see authors assert rights against them.
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nasch (profile), 23 Oct 2015 @ 9:17am

Re: Re: Re: Re: Re: Re: Re: Re: Nothing to discuss
It doesn't matter. The same principle is at work, and US courts routinely consider and apply the law of other sovereign states when it is appropriate to do so

That's fine - then if you're interested in writing about that then tell us when and why that happens and we can all learn something. I'm interested, because it's something I didn't know about. But talking about California law being "foreign" to a federal court is just confusing the issue with a lay audience.
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cpt kangarooski, 23 Oct 2015 @ 10:32am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Nothing to discuss
Well, I'd rather the lay audience gain some knowledge, personally. The federal government is totally separate from the state governments; the same analysis applies, federal courts always defer to state courts' interpretations of state laws, protections against double jeopardy don't apply between states and the Feds (it only prevents the same government from prosecuting you twice, and has more specific limits even then), etc.

In any event try this article by Volokh: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/01/27/why-do-american-courts-use-forei gn-law-in-tort-cases-and-even-in-some-evidence-law-disputes/
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nasch (profile), 23 Oct 2015 @ 2:08pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Nothing to discuss
Well, I'd rather the lay audience gain some knowledge, personally.

That's great, and to do that we have to understand how everyone is using words. To bring in a discussion about how California is foreign to a federal court might not be an effective way to impart knowledge unless you first explain the legal definition of the word "foreign", and also understand what the other person means when they say "foreign".

In any event try this article by Volokh:

Very good article and makes perfect sense of an unintuitive subject. Thanks.
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Tanner Andrews (profile), 24 Oct 2015 @ 10:21am

Re:

There's also regular cases of musicians being upset when their music is used in political campaigns by candidates they oppose.

That is not a ``moral rights'' problem, however, but just a simple copyright problem. Politician who does not buy the right of public performance of the work may lack that right. And if the pol has purchased the rights, perhaps through one of those aggregate licensing societies, then the artist whose work is used has no beef.
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nasch (profile), 24 Oct 2015 @ 11:43am

Re: Re:
And if the pol has purchased the rights, perhaps through one of those aggregate licensing societies, then the artist whose work is used has no beef.

But if the US did moral rights, then they could still have a valid legal complaint even if all the licensing was paid up. That's what makes it a moral rights issue.
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